Panama Update Archives
TEST TUBE REPUBLIC: Chemical Weapons Tests in Panama and U.S. ResponsibilityThe Chemical Weapons Convention (CWC) entered into force on April 29, 1997, only days after the United States joined 109 other states in ratifying it. The CWC requires party states to destroy all chemical weapons it owns or controls within ten years (15 years in exceptional cases). The CWC also requires party states to "assign the highest priority" to protection of the environment. Nations that have abandoned chemical weapons on other nation states' territories are obliged to declare those weapons within 30 days of their ratification of the Convention. The declaration must include "all available relevant information concerning the abandoned chemical weapons." Once the affected nation ratifies the CWC, the nation that abandoned the weapons must destroy them, in cooperation with the affected nation. "For the purpose of destroying abandoned chemical weapons, the Abandoning State Party shall provide all necessary financial, technical, expert, facility as well as other resources."87 (This and all subsequent endnotes can be found here.)
The Convention excludes from its definition of abandoned chemical weapons any munitions which were buried before January 1, 1977, and which remain buried, and chemical weapons dumped at sea before January 1, 1985. However, a state party must still declare chemical weapons which were buried or dumped at sea after these dates. The CWC defines abandoned chemical weapons as those which were produced after 1946, or those produced between 1925 and 1946 which have been determined to be "usable."
The United States submitted declarations to the Organization for the Prevention of Chemical Weapons (OPCW), established by the CWC, within 30 days of the Convention's entry into force in April 1997. However, the U.S. declaration did not include any declaration of chemical weapons abandoned in other countries.88 Since at the very least the United States abandoned chemical munitions on San Jose Island in Panama, this means that the United States is violating the Chemical Weapons Convention's requirement to declare chemical weapons abandoned in other countries.
The U.S. Army South, in its plan for transfer of active firing ranges to Panama, claims that the United States will completely fulfill the Canal Treaty's provisions. The plan makes no mention of the Chemical Weapons Convention, and curiously defines "chemical munitions" as follows:
Those inert munitions or items used to disperse smoke compounds, white and red phosphorous, and riot control agents. Excluded from consideration are chemical warfare materials and chemical compounds which, through its [sic] properties, produce hazards to human health, life or safety.89
Regardless of how the US Army might define chemical munitions for its own internal purposes, the CWC applies to all chemical weapons as defined in the treaty and irrespective of whether they were abandoned in the lands covered by the Canal Treaty or elsewhere. The application of the Chemical Weapons Convention (CWC), on the other hand, is not restricted to chemical munitions abandoned on lands covered by the Canal Treaty. In addition, the CWC imposes reporting requirements on countries which ratify it.On July 7, 1998, Panama's Legislative Assembly ratified the Chemical Weapons Convention.90 Once President Ernesto Pérez Balladares signs the legislation, and the ratification is deposited with the United Nations, both Panama and the United States will face a series of obligations to implement the Convention.
As noted above, the United States is obliged to "provide all necessary financial, technical, expert, facility, as well as other resources" for the destruction of the chemical weapons it has abandoned in Panama. Panama must provide the cooperation necessary to facilitate such destruction.
Panama also has reporting obligations. Within 30 days of entry into force of the Convention for Panama, it must submit all relevant information about abandoned chemical weapons known to be on its territory. If it later discovers other such weapons, Panama must supplement its submission within 180 days.91
In addition to identifying abandoned chemical weapons of which it is aware, Panama must make the fullest efforts to ensure that these weapons are removed from its territory not later than one year after the Convention has entered into force.92 To this end, Panama has the right to request that the United States enter into consultation to create a mutually-agreed plan for the destruction of the weapons. Within 180 days of Panama's request, the plan must be submitted to the CWC's Technical Secretariat.93
Compliance with the provisions of the CWC is monitored by a Conference of States Parties to the Convention. If the United States fails to fulfill either its reporting obligations or to remove chemical weapons that it abandoned in Panama or that are in any area in Panama within its jurisdiction or control, Panama may request the Conference to provide assistance in the destruction of the weapons.94 In addition, the Conference may restrict or suspend the United States' rights and privileges under the CWC until it performs its obligations. If such violations are found be "of particular gravity," the Conference may bring the issue to the attention of the United Nations General Assembly and the United Nations Security Council.95
The 1977 Panama Canal Treaty, as noted in the 1997 report "Environment Injustice on United States Bases in Panama,"96 applies to all lands within the former Canal Zone. These lands include Chiva Chiva, Cerro Tigre, France Field, and Fort Clayton, but not areas outside the former Zone, such as San Jose Island and Rio Hato. The Canal Treaty stipulates:
At the termination of any activities or operations under this Agreement, the United States shall be obligated to take all measures to ensure insofar as may be practicable that every hazard to human life, health and safety is removed from any defense site or military area of coordination or any portion thereof, on the date the United States Forces are no longer authorized to use such site. Prior to the transfer of any installation, the two governments will consult concerning: (a) its condition, including removal of hazards to human life, health and safety; and (b) compensation for its residual value, if any exists.97
Although it appears the U.S. Army South has attempted to define chemical munitions as those chemicals that do not cause human harm, the reality is that buried chemical munitions (as normally defined) can cause both human harm and environmental harm, which in turn can cause human harm. Accordingly, the Panama Canal Treaty requirements regarding protection of the natural environment and the requirements regarding protection of human life, health and safety should apply with full force to buried chemical munitions within the Canal area.Thus, under article VI of the main Canal Treaty, the U.S. government must fulfill its obligation to implement the Treaty "in a manner consistent with the protection of the natural environment of the Republic of Panama." That obligation specifically includes the duty to "consult and cooperate" with the government of Panama to make sure that both governments "give due regard to the protection and conservation of the environment." Because chemical munitions pose a risk to the environment, the two governments must consult and cooperate. Any meaningful consultation and cooperation must begin with full disclosure regarding the location and extent of buried chemical munitions.
Under the Agreement on Implementation of Article IV of the Panama Canal Treaty, the U.S. government must "take all measures to ensure insofar as may be practicable that every hazard to human life, health and safety is removed from any defense site or a military area of coordination or any portion thereof," by the time the U.S. returns control of the bases to the government of Panama. That means the U.S. government must take action to remove buried chemical munitions from bases in Panama before those bases are transferred to Panamanian control.
Irrespective of any attempt by the U.S. Army South to define the problem of buried chemical munitions out of existence, the Canal Treaty and related implementing agreements impose stringent obligations to consult with the Panamanian government about environmental hazards and hazards to human life, health and safety and to remove any such munitions that pose a threat to human health, life and safety.
In addition to its obligations under the Canal Treaty, international law gives the United States affirmative obligations to protect the environment. The obligations derive from treaties, customary international law, and general principles of international law. They begin with the obligation not to harm the environment of another state. Having failed to fulfill that duty, the United States must nonetheless comply with other international legal obligations. Thus the United States must gather and provide information concerning environmental hazards caused by its activities in Panama, it must consult and cooperate with the government of Panama in addressing those hazards, it must carry out environmental impact assessment, and it must facilitate public participation. The United States has not fulfilled these obligations either. U.S. obligations also include the duty to clean up environmental hazards and the duty to provide compensation for irremediable environmental damage. The unremedied, uncompensated contamination and environmental damage at US bases in Panama stands in flagrant opposition to these obligations.98
The United States also appears to be in violation of international legal requirements that regulate particular types of environmental problems, such as hazardous wastes, and activities that endanger biological diversity. The failure of the United States to provide complete and accurate information about environmental conditions, however, makes it impossible to gauge the full scope of other violations.
The United States has also disregarded the substantial body of international law relating to protection of human rights and the environment, which lays out the rights of the Panamanian people and government, as well as obligations of the U.S. government. Some of this law has been codified in treaties that directly bind the United States, some can be gleaned from state practice and other sources of customary international law, and some is found in the writings of jurists and scholars. All of these authorities are recognized sources of international law.
The environmental problems associated with U.S. military bases in Panama may violate a range of international human rights principles. Environmental contamination interferes with the right to a secure, healthy and ecologically sound environment, the right to life, the right to health, the right to personal security, the right to safe and healthy food and water, the right to safe and adequate housing, and the right to self-determination (including sovereignty over natural resources). The U.S. government's apparent disregard for the rights of Panamanians, present and future, also suggests violations of the right to non-discrimination (including the right to environmental justice) and the rights of future generations to inherit a habitable environment. The United States' failure to provide meaningful opportunities for public participation in relevant decision making also implicates the right to environmental information and the right to participation. The U.S. government's refusal to clean up the bases prior to transfer and its denial of post-closure responsibility also violate the right to a remedy.
Because Great Britain and Canada also participated in the San Jose Project, and both are also State Parties to the Chemical Weapons Convention, both nations also have some obligations to dispose of munitions from the San Jose Project. In particular, Great Britain produced an undetermined number of 4.2" chemical mortars charged with mustard which were fired on San Jose Island.
TEST TUBE REPUBLIC: Chemical Weapons Tests in Panama and U.S. Responsibility
I. Introduction
II. Brief History of Chemical Weapons Programs in Panama
III. Storage of Chemical Agents and Munitions
IV. Chemical Weapons Tests
V. Disposal of Chemical Agents and Munitions
VI. Potential Long-Term Dangers Posed by Abandoned Chemical
Weapons
VII. Information and Documents on Chemical Weapons: The
U.S. Record
VIII. Legal Obligations
IX. Alleged development of biological agents in Panama
X. Conclusions and Recommendations
Appendices
Endnotes
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