In her address to the UK parliament on March 14, Theresa May confirmed the British government’s initial assessment that responsibility for the deployment of a chemical warfare agent in Salisbury earlier that month rests with Russia. The prime minister went on to accuse Russia of acting in breach of international law.
The Salisbury incident, May said, in which former Russian spy Sergei Skripal and his daughter were attacked with a nerve agent, represented an unlawful use of force against the UK. The prime minister charged Russia with violating one of the cardinal principles of the international order: the prohibition of the use of force in international relations, enshrined in Article 2(4) of the United Nations Charter. She also accused Russia of flouting its obligations under the Chemical Weapons Convention by running an undeclared chemical weapons programme.
These statements did not go down well with Moscow. The Russian leadership appeared to be particularly irked by Britain’s demand for an urgent explanation.
Russia’s foreign minister, Sergei Lavrov, condemned this “ultimatum” itself as a violation of the Chemical Weapons Convention and vowed that Russia would ignore it. The Russian representative to the Organisation for the Prohibition of Chemical Weapons denounced the request as “absolutely unacceptable” and insisted that the UK comply with its own obligations under the Chemical Weapons Convention.
Key to Russia’s handling of the Salisbury incident is its attempt to turn the narrative around. Russia has not only denied responsibility for the attack, but it has gone on the diplomatic offensive by seeking to brand the UK as a violator of international law. This was particularly evident during the meeting of the UN Security Council on March 14.
What the Chemical Weapons Convention says
Central to the Russian approach is the claim that the UK is in breach of Article IX(2) of the Chemical Weapons Convention. This states:
States Parties should, whenever possible, first make every effort to clarify and resolve, through exchange of information and consultations among themselves, any matter which may cause doubt about compliance with this Convention, or which gives rise to concerns about a related matter which may be considered ambiguous. A State Party which receives a request from another State Party for clarification of any matter which the requesting State Party believes causes such a doubt or concern shall provide the requesting State Party as soon as possible, but in any case not later than ten days after the request, with information sufficient to answer the doubt or concern raised along with an explanation of how the information provided resolves the matter.
Russia argues that Britain’s demand for an explanation within less than 48 hours contravenes this provision, in particular the more generous time limit of ten days it foresees. However, the Russian position appears to be based on a series of misunderstandings.
Not an exclusive remedy
The process set out in Article IX(2) cannot be the exclusive remedy in all cases where doubts arise surrounding compliance with the Chemical Weapons Convention. For example, it would be absurd to suggest that a state which has suffered an armed attack involving chemical weapons may not defend itself against that attack, but instead must issue a request for information to the attacking state and then patiently await its response within ten days.
In fact, on a closer reading, it’s clear that the obligation set out in Article IX(2) is not of an absolute character. It requires state parties to “make every effort” to clarify and resolve doubts. This duty is framed in the language of “should”, rather than “shall”, and is engaged only “whenever possible”. The terms of the clause therefore enable a state to adopt alternative measures should the circumstances so warrant.
After the Salisbury incident, one of the UK’s responses was to call a meeting of the UN Security Council. While Russia vehemently opposed this move as being contrary to the Chemical Weapons Convention, none of the other members of the Security Council, all of which are also signatories of that treaty, shared this view.
It is also important to be clear about the scope of Article IX(2). The provision deals with the clarification of doubts surrounding compliance with the Chemical Weapons Convention. However, the British government had already concluded that it was highly likely that Russia was responsible for the incident. Based on the identification of the nerve agent involved, named as Novichok, the fact that Russia has produced the agent in the past and in the light of Russia’s past conduct and current intent, it was not unreasonable for the UK government to come to this conclusion, in line with the standards of proof applicable in international law in similar circumstances.
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The British government therefore put the following question to Moscow: was the Salisbury incident a direct act by the Russian Federation, amounting to a use of force, or did Russia lose control over its nerve agent? In other words, Britain requested Russia to clarify the nature of its involvement in the incident, not to dispel doubts about its compliance with the Chemical Weapons Convention. Requesting such an urgent clarification is hardly a breach of Article IX(2).
At any rate, it is worth recalling that the provision requires a requested state to respond “as soon as possible”, but in any event not later than ten days after receiving the request. Accordingly, Article IX(2) imposes an obligation on Russia to respond in good faith without delay, rather than confer upon it a right to drag out its answer for up to ten days.