When listening to the claims made by Secretary of State John Kerry and the United Nations’ Ban Ki-moon that Bashar al-Assad’s regime has used chemical weapons, we've often heard that Syria has “violated international law and norms.” Yet regardless of whether the use of such weapons is immoral, it turns out that technically Syria did not break the Chemical Weapons Convention treaty, as it neither signed nor acceded to it before or during the use of sarin gas. In fact, there are five such states and two other ones that have signed but not ratified the treaty. The chart below provided by the Organization for the Prohibition of Chemical Weapons lists them.
Israel has signed but not ratified the CWC treaty because while it may no longer have a chemical arsenal, Israel has used this ambiguity for deterrence purposes because of the ever-hanging threat of invasion from its neighboring Arab states. Both Syria and Egypt had not signed or ratified the treaty because of the threat that Israel’s nuclear arsenal posed to them. Angola no longer has chemical weapons but has not signed or ratified the CWC treaty due to “logistical and resource issues.”
North Korea hasn’t signed for the obvious reason that it still wishes to reunite Korea by force and views its alleged 5,000 tons of chemical weapons as deterrence against perceived U.S. and South Korean aggression. South Sudan only became a recognized state in 2011 and so it was initially argued it would be unfair to expect the country to immediately make signing the CWC treaty a priority, although that was two years ago.
Yet all of these states have signed the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare under the League of Nations. Only Myanmar, formerly Burma, and the recently formed South Sudan have not signed. Therefore even though Angola, Egypt, North Korea, South Sudan, and Syria didn’t sign the Chemical Weapons Convention treaty, all but one of them did sign the 1925 Geneva Protocol and thus are still bound by international law not to use biological or chemical weapons.
The difficult of defining international law comes into play when dealing with Myanmar, which has signed but not ratified the CWC, and South Sudan, which has done neither. Article 38 of the Statute of the International Court of Justice states that international law comes from four sources: (1) treaties and conventions, (2) international custom, (3) the principles that are inherent in the law recognized by “civilized nations,” and (4) previous judicial decisions. Multiple problems exist with these four sources and how they are defined, such as the question of how we can prove that most states for most of history recognized “x” as part of their law, or what constitutes a “civilized nation” and why they should get to set down the principles of law.
Thus, because of the difficulties of defining international law, it would be best in terms of legality if Myanmar and South Sudan simply followed the first source of law by fulfilling the legal requirements to be bound under the CWC treaty or the 1925 Geneva Protocol. The question that remains is how this can be done. For both states security remains a major problem. Myanmar has had several long-running civil wars, sectarian violence, and insurgencies, whereas newly independent South Sudan has had several border clashes with Sudan. Because of this, it could be argued that these states have no self-interest in giving up the ability to have or use such powerful weapons. Yet it appears that neither state currently possesses substantial chemical or biological weapons. When one also considers the fact that such weapons are notoriously difficult to use (they can shift with the wind causing gas and other agents to fall on the wrong targets), it would appear that it would not be in either state's interest not to sign the treaty.
Yet the international community cannot make them sign nor can these states be militarily threatened to do so, since they are not guilty of breaking any law and the use of force would have to be authorized by a UN Security Council with China and Russia on it. Thus there remains only one way to ensure that international law prohibiting chemical weapons becomes universally accepted and enforceable. The United Nations, together with NGOs, could undertake an effort to persuade South Sudan and Myanmar to sign through the sticks of diplomatic pressure and sanctions and the carrots of aid and acceptance. But if any effort is to be taken, it should be done within the legal framework of the United Nations and the Security Council, not unilaterally by the U.S. or Europe.