Posted by: Chris | October 13, 2010

Chemical Carol Ann Bond

[This was a comment, but, like half of all Lure posts, it became too long and gained a life of its own]

Regarding CF’s lethal legal love triangle, I wonder how one defines a chemical weapon.  I fully recognize that this is not the constitutional matter at hand, so everything here is idle meadering.  Anyway, it seems obvious that all chemicals are lethal and all that differs between them is the lethal dosage, so seemingly anything could be a chemical weapon.  However, the plain usage of the term would seem to discount, for example, a lethal dose of alcohol, so some confusion arises.  For its part, the Chemical Weapon Convention defines chemical weapon as:

“Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes”

where “toxic chemical” means:

“Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.”

This definition strikes me as pretty fascile, since, as stated at the outset, pretty much anything can “through its chemical action on life processes cause death, temporary incapacitation or permanent harm to humans or animals.”  Thus using this definition pins classifying “chemical weapons” onto their use in actions prohibited by the CWC.

Focusing on just actions prohibited by private citizens, Article VII, Section 1, a-c lays out the specific regulations for states to implement in their jurisdictions (and thus the authority under which the federal government used Sec. 229(a)(1) to prosecute Bond):

1. Each State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.  In particular, it shall:

          (a). Prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity;

          (b). Not permit in any place under its control any activity prohibited to a State Party under this Convention; and

          (c). Extend its penal legislation enacted under subparagraph (a) to any activity prohibited to a State Party under this Convention undertaken anywhere by natural persons, possessing its nationality, in conformity with international law.

 The actions prohibited to a State Party are as follows (Art 1, Sec. 1, a-d):

(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;

(b) To use chemical weapons;

(c) To engage in any military preparations to use chemical weapons;

(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.

With the caveat from Art VI, Sec 1:

1. Each State Party has the right, subject to the provisions of this Convention, to develop, produce, otherwise acquire, retain, transfer and use toxic chemicals and their precursors for purposes not prohibited under this Convention.

I cannot seem to wrest a clear definition from this vague and ultimately circular language.  To me, it reads that one is not permitted to use chemical weapons, defined as chemicals one is not permitted to use, unless one is permitted to use them, which is transparent nonsense.  Fortunately, the Convention does specify certain chemicals as controlled substances, and thus candidates for chemical weapons.  Unfortunately, potassium dichromate is not listed as a controlled chemical by the CWC, nor as a chemical weapon by either the CDC or the NIH

One recourse is to assume the “quantities…consistent” clause refers to the use of lethal or toxic dosages of chemicals for that purpose.  A lethal dose of potassium dichromate is 100mg/kg (compared to 1.5mg/kg for cyanide and 0.003mg/kg for sarin gas).   For a 70kg (154 lbs, not including baby weight) woman, a lethal dose (injested) is thus roughly 7 grams.  The government calls this a few crystals or a quarter of a tablespoon, which I think is some underestimation on their part.  Additionally, they claim potassium dichromate has “the rare ability to cause toxic harm to individuals through minimal topical contact” but then strangely proceed to justify the toxicity of potassium dichromate based on injestion quantities.  Unless the victim had a tendency to lick mufflers and doorhandles, it is likely either a) the injested toxicity is irrelevant or b) the actual injested dosages were far lower than the applied dosages and quite likely were nontoxic.  Since the victim was utterly unaffected by Bond’s “chemical weaponry,” this is likely the case.

Thus, I really cannot see how the potassium dichromate used here classifies as a prohibited chemical weapon under the CWC.  Why the feds decided to try the case using the federal statutes enacted through this treaty, as opposed to getting her on attempted murder or mail tampering is equally mysterious.

Advertisements

Responses

  1. It’s not vague, it’s clearly defined. Section 2.9 explicitly spells out what “purposes not prohibited under this Convention” means:
    * (a) Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes;
    * (b) Protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons;
    * (c) Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare;
    * (d) Law enforcement including domestic riot control purposes.

    It seems clear that Bonds spreading potassium dichromate isn’t any of the above, so it’s not a purpose prohibited by the act. Thus, it’s a use of a chemical weapon.

    Ironically, it seems to me that it doesn’t even matter whether the chemical was actually toxic or not – if you’re using a chemical which COULD be toxic in sufficient quantities, or is a precursor (as defined), and you aren’t using it for one of the four types of use which are explicitly exempted, you’re using a chemical weapon as defined by the act. There’s no exemption for incompetence.

  2. I agree with MM that the Convention does a good job non-circularly distinguishing between permissible and impermissible chemical weapons.

    But I think – even assuming as I’m just going to, despite skimming something I thought might be to the contrary in Chris’s morass, that potassium dichromate is a toxic chemical – this is too hasty: “It seems clear that Bonds spreading potassium dichromate isn’t any of the above, so it’s not a purpose prohibited by the act. Thus, it’s a use of a chemical weapon.”

    If you look at the preamble it’s pretty clear that the point of the Convention is to do away with chemical “weapons of mass destruction” or other “methods of warfare,” not small quantities of poison used by a jealous lover. Three ways to go from here:

    (1) Because the Convention’s provisions clearly, if inadvertently, cover the latter, the Convention obliges State Parties to criminalize that conduct.

    (2) Because the Convention’s provisions only inadvertently cover the latter, the Convention does not oblige State Parties to criminalize that conduct.

    (3) Because the Convention should be read in light of its purposes, its provisions DO NOT cover the latter, so it would be a misinterpretation to read it as obliging State Parties to criminalize that conduct.

    I am inclined to view (2) because it seems stupid – formalistic in the pejorative sense – to allow infelicities of expression to trump express common purposes especially in remedial, as opposed to penal, legislation. (That said, given the evidentiary problems, I can see the merits of not taking into account common purposes that weren’t expressed in the legislation in trying to decide what it enjoins.)

    In short, I would not say that Bond’s use of potassium dichromate is an (actionable) use of a chemical weapon.

  3. Good call. I did miss the “Purposes not prohibited under this Convention” definition. Things make a lot more sense now. I was surprised at how circular it seemed without that bit (hence the blog post).

    Though, like MM notes, if interpretted in light of that definition, it reads that intention, not toxicity/quantity, is all that matters in determining whether a chemical weapon was used, since all chemicals fit the definition of “toxic chemical” that the CWC employs. So I could potentially be tried with employing a chemical weapon by spritzing someone with water, so long as I was sufficiently deluded that doing so would cause water poisoning.

    CF, perhaps I am misremembering, but wasn’t there an ILaw case that determined which matter more in treaty law, intention or text? That might clarify things.

  4. Nah, though the hand glider case said something about what languages are authoritative in which jurisdictions. (I’m pretty sure the native tongue, although it might have been French.)

    Article 31(1) of the Vienna Convention on Treaties says concerns the proper interpretation of treaties, but it’s kind of catch-all “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

    Interestingly, on its face 31(1) seems to suggest that if you come to the conclusion that – even taken in light of its purposes – the ordinary meaning of a treaty is e.g. that all toxic chemicals are chemical weapons, you must conclude that the treaty obliges all parties to treat toxic chemicals as chemical weapons. In other words, 31(1) suggests that my option (2) (above) is wrong – if, notwithstanding interpretation in light of its purposes, the treaty includes a clause that obviously does not promote its purposes then that clause is nonetheless binding.

    However, note that “ordinary meaning to be given…in the light of its objects and purpose” itself requires interpretation; it is vague about how bright a “light of its objects and purpose” ought to be shone on the treaty’s ordinary meaning? One can resolve ambiguities in favor of ordinary meaning, or in favor of ordinary meaning mediated by purposes. In fact, what even qualifies as an ambiguity depends on how much weight is assigned to reading through the lens of objects and purpose.

    If 31(1) prescribes the rule for its own interpretation, then we must look to the preamble of the Vienna Convention on Treaties* to decide how to resolve the ambiguity. Given that the preamble emphasizes the utility of treaties at promoting international cooperation, dialogue and dispute-resolution, and given that formalistic, clause-bound interpretation is anathema to that purpose, it seems to me we should resolve the ambiguity in 31(1) so that it expresses that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the luminous light of its object and purpose.

    In that light, I think it’s reasonable to read out of a treaty inadvertent implications that have nothing to do with promoting the treaty’s purposes.

    * 31(2) explicitly identifies the preamble as one of the sources of a treaty’s purposes.

  5. It was the Vienna Convention that I had in mind, and I agree that the text does seem to imply that we should take implications into account.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: