|December 9, 1996
CHEMICAL WEAPONS CONVENTION: A BALANCE BETWEEN OBLIGATIONS
AND THE NEEDS OF STATES PARTIES
The multilateral negotiations on the Chemical Weapons Convention (CWC) concluded in Geneva on September 3, 1992, with the Conference on Disarmament (CD) forwarding the draft text to the UN for endorsement. On November 30, 1992, the UN General Assembly endorsed the CWC by consensus, with 145 countries cosponsoring the supporting resolution. The CWC opened for signature in Paris on January 13, 1993, where 130 countries signed the Convention. On October 31, 1996, Hungary became the 65th nation to ratify the CWC, thus triggering an 180-day period after which the CWC enters into force, April 29, 1997. The CWC is historic in the scope of its provisions an in the number of countries involved in its development. Additionally, The Conference of States Parties established by the Convention will provide members an opportunity to build regional and global stability and to play a more responsible role in the international community.
This paper describes some of the CWC's key provisions, which were designed to balance the need for effective Convention provisions with the national security and economic requirements of States Parties in implementing such provisions.
The Destruction of CW and CW Production Facilities
Throughout the CWC negotiations, CD participants sought ways to remove the possibility of use or threat of use of CW through measures which would provide confidence among States Parties adhering to the Convention that their security would be enhanced. To this end, the negotiators desired to ensure the complete elimination of CW and their production facilities within a specific period of time; assign responsibility for destruction of CW stocks abandoned on a State Party's territory; prohibit any right of CW retaliation; prohibit the use of herbicides and riot control agents (RCA) as a method of warfare; and, in the event of CW use or threat of use, provide for protection and assistance to the victimized party.
At the same time, negotiators had to take into account such factors as the technical difficulties associated with destruction of CW, the possible need for commercial use of former CW production facilities, and the non-warfare uses of herbicides and RCA, (e.g. crop control, law enforcement). This required negotiators to develop provisions which balance a State Party's obligations under the Convention for declarations, destruction timeframes, international monitoring, etc., with the needs and requirements of States Parties in implementing these obligations.
Thus, the CWC contains provisions which prohibit: the development, production, acquisition, stockpiling, retention, direct or indirect transfer to anyone of CW; the use of CW against anyone; engaging in any military preparations to use CW; and assisting, encouraging in, or inducing anyone to engage in activities prohibited to States Parties.
The Convention requires all CW to be declared, declarations to be checked, and all CW to be completely eliminated within 10 years, with storage and destruction monitored through on-site inspection. An extension of a State Party's destruction program for up to five years is possible, but not automatic. It must be approved by the Conference of States Parties which will set conditions under which the extension may be granted, including specific verification measures and actions to mitigate the delay. The CWC requires a State Party to destroy and bear the costs of destruction of CW it abandoned on another State Party's territory; otherwise, the territorial State Party may request assistance from the CWC organization.
The CWC further requires all CW production to cease, CW production facilities to be declared, the declarations to be checked, and the facilities destroyed, with cessation of production and destruction monitored through on-site inspection. In exceptional cases of compelling need, the Conference of States Parties may approve conversion of former CW production facilities for prescribed non-CW uses, subject to appropriate international monitoring.
Finally, the Convention contains provisions which prohibit the use of RCAs as a method of warfare, reaffirms the prohibition on use of herbicides as a method of warfare, and provides for protection and assistance in the event of use or threat of use of CW against a State Party
Monitoring the Chemical Industry
In the Convention, chemicals of concern have been divided into three schedules according to the risk that they pose to the objectives of the CWC. Facilities producing, processing, and consuming these chemicals are subject to initial and annual declaration and international monitoring, including on-site inspection. In addition to these facilities, other facilities capable of producing the scheduled chemicals, but not doing so, are also subject to declaration and a monitoring regime.
At the same time, the provisions for monitoring chemical industry take into account countries' concerns about the difficulties of national implementation of the CWC such as the possible impact of the provisions on economic and technological development, the possible loss of confidential business information, and the difficulty of monitoring small chemical industry facilities in developing countries. Measures are included which provide inspection procedures and methods for handling information which protect sensitive, non-CW related information; require that the Convention be implemented in a manner which avoids hampering economic or technological development; and require States Parties to facilitate the fullest possible exchange of chemicals, equipment and scientific and technical information for permitted purposes
The Convention also contains provisions to allay the fears of some developing countries about the difficulty of identifying and opening to monitoring chemical industries capable of producing scheduled chemicals but not now doing so. In particular, there is a provision for assistance in compiling lists of such facilities and means to address any problems of completeness of such lists. Thresholds for declarations and inspection have been set high enough to preclude capturing small, irrelevant chemical industries. Finally, the inspection regime for this sector of the chemical industry will not start, at the earliest, until the fourth year after entry into force of the CWC. Moreover, the implementation of this category of inspections will be subject to further discussion and decision-making by the Conference of States Parties and will take into account the accrued experience of other industry inspections.
The CWC contains two verification regimes to enhance the security of States Parties to the Convention and to preclude the possibility of clandestine CW production, storage and use. The first regime provides a routine monitoring regime involving declarations, initial visits and systematic inspections of CW storage, production and destruction facilities and relevant chemical industry. The second regime, challenge inspection, allows a State Party to request and have conducted an international inspection of any facility or location in another State Party in order to clarify and resolve questions of possible noncompliance.
The challenge inspection procedures were the most sensitive and difficult to develop, given the need to balance provision for an adequate degree of intrusiveness to address compliance concerns with the need to protect sensitive, non-CW-related commercial or national security information. The CWC obligates the State Party to be inspected to accept a challenge inspection and to make every reasonable effort to satisfy the compliance concern. At the same time, the CWC provides for a system of managing access to a challenged site which allows for protection of the inspected party's national security concerns. It does so in two ways: first, through procedures to deter the challenging party from abusing the process and, second, through procedures which allow the inspected party to protect sensitive, non-CW-related information.
The inspected Party has final say in determining the extent and nature of access within the challenged site. The Party will negotiate with the inspection team the following: the extent of access to any particular place or places within the inspection site, the particular inspection activities including sampling, the performance of particular activities by the inspection team and the provision of particular information by the inspected Party.
Deterrence of Abuse
To deter abuse, the Convention contains provisions for both the requesting and the inspected Parties to have their concerns about compliance and possible abuse of the system addressed by the Executive Council at both the beginning and the conclusion of a challenge inspection. A State Party must submit a request for challenge inspection to the Executive Council as well as to the Director General of the technical Secretariat of the CWC Organization. If the Executive Council considers an inspection request to be frivolous, abusive or clearly beyond the scope of the Convention, it may, within 12 hours after having received the request decide by a three-quarter majority of all its members against carrying out the challenge inspection.
After a challenge inspection, the Executive Council will review the final report of the inspection team. In addition to addressing concerns about whether any noncompliance occurred, the Council will also address concerns as to whether the request had been within the scope of the Convention as well as whether the right to request a challenge inspection had been abused. If the Executive Council concludes there was abuse, it may recommend to the Conference of States Parties measures to take against the requesting party and examine whether that party should bear any of the costs of the inspection.
In addition to specific provisions to address abuse, there is a general provision giving States Parties the right at any time to request the Executive Council to consider concerns about abuse of the rights provided for under the Convention.
Protection Through Inspection Procedures
The Convention also contains inspection procedures which provide the inspected party with the means to protect sensitive sites. Such means include: the timeframes specified to provide access; limitations on observers; and the process of managed access at the site.
With respect to timeframes for inspection, after receiving notification of the site to be inspected, the inspected Party has the ability to take up to 5 days to provide access to the site. This time period allows inspected Parties adequate time to prepare a site for inspection. Once at the site, the period of inspection itself is limited to 84 hours, extendable only by agreement with the inspected Party.
Concerning limitations on observers, while the requesting Party can ask to have an observer accompany the inspection team, the inspected Party has the right to disapprove the participation of such an observer. If the inspected Party allows the participation of an observer, it can limit the access and activities of the observer at the site.
Finally, and most importantly, the inspected Party has final say in determining the extent and nature of access within the challenged site. The Party will negotiate with the inspection team the following: the extent of access to any particular place or places within the inspection site, the particular inspection activities (including sampling) to be conducted by the inspection team, the performance of particular activities by the inspection team and the provision of particular information by the inspected Party. For example, the Party may give only individual inspectors access to certain parts of the inspection site; it may shroud sensitive pieces of equipment such as computer electronic systems; and it may restrict sampling and sampling analysis. In the event the inspected Party provides less than full access to places, activities or information, it is under the obligation to make every reasonable effort to provide alternative means to clarify the possible non-compliance concern that generated the challenge inspection.
Organization and Costs
Two other issues of importance and concern which arose during negotiations of the CWC were the allocation of costs for implementing the Convention and equitable participation in its organizational bodies, in particular, the Executive Council since it will play a large role in CWC implementation. Provisions of the Convention address these concerns by allocating costs on an adjusted UN scale, to lessen the burden on small and developing countries, with the most expensive costs -- verification of destruction -- to be borne almost entirely by the countries possessing CW. Another provision establishes the principle of rotational seats on the Executive Council and seat allocation on a regional basis, leaving it up to each region to designate members, taking into account not only a State's industrial significance but also other regional factors. Yet another provision provides for staffing the Technical Secretariat, drawing from States Parties in a manner which gives due regard to recruiting on as wide a geographical basis as possible.
Provisions for Improving the Convention
Finally, the negotiators recognized the need for making the Convention a living document which will allow for the possibility of improvement based on inspection experience and advances in verification technology. Therefore, the CWC contains provisions to allow for technical changes and annual and special conferences to discuss implementation and address any particular problems.
Preparing for Implementation of the Convention
After the Convention was signed, a Preparatory Commission of all signatory states began work in early February 1993 to further elaborate detailed procedures and to set up the CWC International Organization. Commission meetings have been taking place in The Hague, which will be the seat of the Organization. Shortly after entry into force, the Preparatory Commission will convene the First Conference of States Parties which will, among other things, bring about the transition from the Preparatory Commission to the Organization for the Prohibition of Chemical Weapons (OPCW). The OPCW will implement and administer the CWC worldwide. (See OPCW fact sheet.)