This the nineteenth of the current Pugwash workshop series on chemical
and biological warfare (CBW) was the tenth to be held in the Netherlands.
The workshop was hosted by the Netherlands Pugwash Group, with support
from the Netherlands government and from the German corporation Blücher
GmbH, and was jointly convened by the Harvard Sussex Program on CBW
Armament and Arms Limitation (HSP) and the international Pugwash Study
Group on Implementation of the Chemical and Biological Weapons Conventions.
Forty-six people attended the workshop, by invitation and in their
personal capacities, from 20 countries: Australia, Belgium, Canada,
Czech Republic, France, Georgia, Germany, India, Iran, Israel, Italy,
the Netherlands, New Zealand, Poland, Republic of Korea, Russia, South
Africa, Switzerland, the United Kingdom (UK), and the United States
of America (US). This report of the workshop is the sole responsibility
of its author, who was asked by the meeting to prepare a report in
consultation with the Steering Committee. It does not necessarily
reflect a consensus of the workshop as a whole, or of the Study Group.
The meeting opened with a welcome from the Netherlands Pugwash Group
and the observation that this workshop had attracted the largest number
of papers yet (27, by the end of the weekend) for the workshop to
consider. It was observed that, ten years after the Study Group had
started meeting in the Netherlands, the work of the Group continues
to be highly relevant - its focus is on the implementation
of the CBW Conventions, and as such is open-ended, with a continuing
need for the attention and interest of the Study Group.
This was the third time that the First Chemical Weapons Convention
Review Conference (the Review Conference) had been the main item on
an agenda for the Study Group, with the Review Conference due to open
in The Hague on Monday 28 April, the day following the closing of
the workshop. Under the main heading of The First CWC Review Conference
and Beyond, the workshop received a report on recent developments
at the OPCW and a short update on international criminalization, with
the group unfortunately not able because of the unexpected absence
of a participant to receive a report on the aftermath of the Fifth
BWC Review Conference. In reviewing the first five years of the Chemical
Weapons Convention (the CWC), the main items for discussion at the
workshop were emergent threats to the CWC, including unscheduled chemicals,
'non-lethal warfare' and allegations of non-compliance, as well as
key basic elements of the CWC and their implementation, namely the
general purpose criterion (GPC) and domestic penal legislation. In
looking at the way ahead for the CWC, the workshop discussed topics
relating to industry and trade, states not yet parties and the problem
of 'law enforcement'.
CWC: Recent developments in the OPCW, including the
First CWC Review
Given the proximity of the Review Conference, the primary matter
on which the workshop was updated in relation to the OPCW was the
status of preparations for the Review Conference and the work that
had been carried out at the OPCW by the Open-Ended Working Group for
the Preparations for the Review Conference (the Working Group). Other
items touched upon included: the impact of the new Director-General
of the OPCW; the tenure policy of the OPCW; the status of chemical
weapons destruction; the role of the OPCW in combating chemical terrorism;
the work of the Scientific Advisory Board (SAB); and the new fifth
possessor state party.
In respect of preparations for the Review Conference, the Open-Ended
Working Group established in September 2001 initially addressed organisational
issues, including: whether the review of the CWC should take an article-by-article
or thematic/cluster approach; the identity of the officers of the
Review Conference; and the need for a drafting committee. Only in
late October 2002 did the Working Group address substantive issues,
using a cluster approach. The meetings resulted in the drafting of
two Chairman's texts, beginning in January 2003, intended to be the
base for discussions and drafting of Final Documents at the Review
Conference. The first text was a draft Political Declaration, a short
statement of commitment and purpose aimed at a non-specialist audience.
The second 'Consolidated Text' was a longer paper reflecting on five
years of experience and containing general, rather than specific,
recommendations.
The workshop heard an outline of the major issues that arose in relation
to items on the Provisional Agenda for the Review Conference and the
Chairman's Consolidated Text. Those issues included: how to address
the non-membership of certain countries of the OPCW; the need for
universality and effective national implementation of the CWC; the
comprehensiveness of the CWC prohibitions and the role of the Schedules
to the CWC; optimization of verification activities; the timelines
for destruction of chemical weapons and the need for support of destruction
programmes; proposals for 'nil declarations'; the need for the OPCW
to be prepared for a challenge inspection and concerns regarding 'abuse'
of the challenge inspection mechanism; the need for a clear understanding
of the concept of Assistance and Protection; under Article XI, the
Australia Group's impact on trade and the role, size, budget and evaluation
of international co-operation and assistance programmes; the submission
of declarations in electronic format; and the functioning of the policy-making
organs of the OPCW, as well as the interaction with subsidiary bodies
such as the SAB.
The fact that the Provisional Agenda was not adopted by the Executive
Council until only a month before the Review Conference, and that
the Director-General's reports were issued only shortly before the
Review Conference, was deplored. This impacted negatively on the ability
of NGOs and academics to contribute to the Review Conference, in the
absence of such information. The Provisional Agenda had effectively
been ready and available to states parties in December 2002, but agreement
within the Executive Council was not forthcoming on the issues of
the drafting committee and identity of the officers. While 2002 was
preoccupied with issues surrounding the replacement of the first Director-General
and the 2003 budget, states parties had not truly engaged in substantive
preparation for the Review Conference until January 2003, with only
approximately 25 states parties actively being involved in the work
of the Working Group. Less than 20 states parties were expected to
be represented at the Review Conference at the level of Deputy Minister
or higher. In essence, there seemed to be agreement amongst the workshop
that there had not been sufficient substantive preparation for the
Review Conference. One participant labelled the Review Conference
a 'missed opportunity' already. On the other hand, others viewed the
Review Conference as having received comparatively little attention
because, in contrast to the BWC for example, the CWC was seen as operating
relatively well. A variation on this was the comment that arms control
regimes in general were under considerable strain today (for example,
the NPT and BWC), and that by contrast, what the CWC Review Conference
could hope to achieve was not inconsequential.
On other matters relating to the OPCW, in the ten months since the
last workshop in the Netherlands, a new Director-General of the OPCW,
Rogelio Pfirter of Argentina, had been appointed (see the reports
of the 17th and 18th workshops of this Study Group). His priority
task has been to heal political wounds in relation to the manner of
the Secretariat's interaction with member states.
The OPCW has seen an improvement in its financial situation for 2003,
with the Organisation able to carry out its programme of work in full
this year. However, it was estimated that at least a seven per cent
increase would be needed in next year's budget to keep pace with costs.
Such an increase may not be viable, and it was considered that it
may be necessary to address the staffing structure of the OPCW.
At the last session of the Conference of the States Parties, a more
constructive debate on Russian deadlines for destruction of chemical
weapons was possible, as a result of evident progress in Russian destruction.
At the Executive Council session in March this year, a new deadline
of 31 May was set (the Conference having accepted extension in principle)
for one per cent destruction. It was reported that this objective
had already been met at Russia's Gorny destruction facility. Another
recent development in Russia is the replacement of Zinovy Pak by General
Kholstov, Head of the Radiation, Chemical and Biological Defence Troops,
as head of the Russian Munitions Agency.
On other issues related to possession of chemical weapons, with the
recent addition of Albania to the list, there are now five declared
chemical weapons possessor states. Discussions are, apparently, continuing
regarding what, of the relatively small quantities of chemical weapons
found by Albania, will need to be declared.
In respect of the role of the OPCW in combating chemical terrorism,
while little occurred during most of 2002, a shift was reported to
have occurred towards the end of the year. Recognising the need for
international organisations dealing with weapons of mass destruction
to play a role, the OPCW was invited to attend the first session of
the United Nations (UN) Counter-Terrorism Committee in New York this
year. A special meeting, devoted to discussions with the OPCW, IAEA,
WCO, Interpol and others, was planned for mid-May. Internally, the
OPCW's Open-Ended Working Group on Terrorism, established in December
2001, has been reactivated. In addition, in September 2002 the first
OPCW exercise on the delivery of assistance (ASSISTEX I) took place
in Croatia, based on a hypothetical terrorist chemical attack on an
airport.
In addition to the more general reports on the OPCW, the workshop
also received a paper on the SAB's report to the Review Conference,
which had very recently been issued to States Parties. The report
analyses relevant developments in the fields of science and technology
and provides advice to the Review Conference, with the aim of improving
the operation of the CWC. In addition to some new ideas, the SAB report
also includes earlier observations and recommendations by the SAB
on scheduled chemicals, production of chemical compounds, on-site
analysis, and destruction, amongst other things. It was observed that
the strict dividing line between chemistry and biology had already
disappeared, with the developments, for example, in biotechnology
and changes in the chemical industry. Concerns were raised amongst
the workshop regarding the presentation of SAB reports via notes from
the Director-General - it was considered that this might at least
create an impression that the SAB was subordinated to the Director-General,
rather than an independent body. However, it was emphasised that the
SAB was independent and carried out its work in good faith.
One of the areas of interest to the workshop was the advancement
in technology relevant to verification of destruction, given the high
percentage of OPCW funding absorbed by the verification programme.
This is an issue currently under discussion, with a consultant having
been hired by the Director-General to visit possessor states parties
and formulate proposals in this area. The consensus seemed to be that,
as will likely also be the case in relation to most other issues,
the Review Conference would not take a specific substantive decision
on this point but will instead highlight the issue and reiterate the
need for resolution. Members of the workshop expressed the hope that
the Review Conference might formulate a programme of work to look
at various issues in coming years.
The implementation of the OPCW's tenure policy was an issue provoking
much discussion amongst workshop participants. In late March the Executive
Council finally took a decision in respect of the effective starting
date for the OPCW's seven year maximum length of service tenure policy,
some four years after the Conference delegated authority to the Council
to set a date. The starting date set by the Council is 2 July 1999,
the date of the Conference decision. The majority of the Secretariat
staff's contracts started in May or June of 1997. A number of workshop
participants expressed concern at the implementation of the tenure
policy, which is due to take effect this calendar year. Amongst the
concerns raised were: the ability to recruit experienced inspectors
for what will be relatively short-term positions; a possible reduction
in the independence of staff from their previous jobs or governments;
the loss of institutional knowledge and inspector experience; a reduction
in operational effectiveness; and the impact on morale at the Secretariat.
The observation was made that, originally, bilateral inspection agreements
had been contemplated for Article IV and V inspections, with the majority
of inspectors having been expected to carry out Article VI inspections.
Some members concluded from the tenure decisions taken that an effort
would be made to gradually lower the number of approved posts within
the Secretariat.
The CWC: The first five years
Emergent Threats to the Convention
A provocative presentation was given to the workshop, taking the
point of view of a terrorist or agent of a rogue state and asking
where that person would perceive weaknesses and opportunities for
obtaining chemical agents. The hypothesis was that small, new and
inexperienced chemical companies in financial difficulties, with a
large amount of spare capacity, would be targeted. The likelihood
of detecting the production of Schedule 1 chemicals - assuming that
Schedule 1 chemicals were being sought -- by random inspection amongst
thousands of DOC plants was doubted, and industry inspections were
stated to be of mild deterrent effect. To increase confidence amongst
states parties, , the presentation concluded that it is necessary
to increase confidence in the CWC, which should be achieved by ensuring
that implementing legislation is complete, and that declarations are
full and accurate. What should be considered is how to make challenge
inspections more politically acceptable and useful tools. The possibility
of having some form of 'non-accusatory' challenge inspection was considered,
but is not ripe for discussion at a diplomatic level. The observation
was made that the CWC was designed primarily for state versus state
scenarios, whereas what is now being sought is to utilise the provisions
of the CWC to help in the efforts to prevent terrorism.
Looking at other emergent threats to the Convention, the workshop
received a presentation considering the comprehensiveness of the General
Purpose criterion (GPC) and asking whether there were any inconsistencies
in the Convention, the position of Riot Control Agents (RCA) being
highlighted as a potential problem. One issue raised was the misunderstanding
of the phrase 'toxic chemical', with differing meanings ascribed to
this phrase in the CWC and within the scientific community. The issue
of new toxic compounds as a result of scientific and technological
development was also highlighted, with three principle lines of search
identified as having been used in the past: for more efficient analogues
and homologues of already known toxic chemicals; more efficient toxic
chemicals with different structures but similar kinds of toxic effects;
and new toxic chemicals with quite new effects. The same lines of
search are applicable today. The possibility of adding some toxic
chemicals to the Schedules, or even amending the Convention in the
future, was raised, with the caveat that states parties may be politically
unwilling to do so, particularly given the threat of chemical terrorism.
A paper was also presented on scientific and industrial developments
since 1992, when negotiation of the CWC was concluded, highlighting
the great changes in industrial infrastructure since that time. The
trends in the chemical industry were considered to pose major challenges
to the implementation of the CWC, with a resulting need for flexibility
within the OPCW and obvious implications for inspector training.
'Non-lethal warfare'
The topic which absorbed the workshop for much of its time was 'non-lethal'
warfare, an issue which, together with the question of 'law enforcement'
under the Convention (a topic also addressed separately by the workshop
- see below), has become more controversial and high profile since
the last meeting of the workshop in Geneva in November 2002, where
it was also discussed. A large number of the papers received by the
workshop addressed these issues, as well as the related issue of RCA,
and the Moscow hostage crisis.
The workshop addressed the issue of 'new weapons' and methods of
warfare, highlighting the legal scrutiny required of new weapons by
Article 36 of Additional Protocol I to the Geneva Conventions. It
was reiterated that, as shown by the Moscow hostage crisis, the effect
of a calmative or incapacitant agent depends on the means of delivery
and the environment in which it is delivered, and to achieve military
effectiveness, the dose required inevitably results in a proportion
of the people exposed receiving a dangerous if not lethal dose. The
use of a hypothetical 'perfect' non-lethal weapon (NLW) on a battlefield
was then explored, with concerns raised regarding the ability of soldiers
to recognise and respond appropriately to the enemy's incapacitation,
resulting in a potentially increased mortality due to increased vulnerability.
The position was taken that consideration in terms of international
humanitarian law should be given to the deployment of new weapons
and methods of warfare. Included in that is consideration of the effects
on the victims, and the prohibition at customary international law
of attack against civilians. On the other hand, discussion amongst
the workshop also reflected that in a world with increasing terrorist
threats, new risks may require new responses, and that doctrinal approaches
may not always be helpful.
Another presentation delivered to the workshop highlighted that the
number of fatalities (approximately 15 per cent) incurred during the
Moscow hostage crisis was to be expected. The presentation concluded
that it is incorrect to categorically distinguish between lethal and
'non-lethal' weapons. While there is disagreement as to whether there
might be a truly NLW in the future (i.e., less than 0.5 per cent fatality
rate), the presenter concluded that they might eventually be discovered.
As touched on by many participants at the workshop, there are real
concerns about the implications for the CWC regime of the increasing
governmental interest in NLW for 'law enforcement'. With particular
reference to the US research into NLW, although not considered to
be in violation of the CWC, it was thought to be close to the line.
To the knowledge of the workshop, there are no defensive NLW projects
underway in the US. The reasons for this are that the US is not yet
at the development phase of NLW and that the chemicals being examined
are established pharmaceuticals with known antidotes.
The divide between the US position on RCA as not being toxic chemicals
falling within the GPC, and that of the majority of other states which
view RCA as falling within the scope of the GPC, was highlighted.
The US Navy Judge Advocate General opinion differentiated between
the definition in Article II of 'toxic chemical' and 'RCA'. One workshop
participant stated that riot control was a use for chemicals, and
referred back to the GPC, stressing that RCA were still toxic chemicals.
This, however, is not the position taken by the US, which views the
different wording of the two concepts as deliberate and meaningful.
One proposal raised within the workshop was to allow the use of NLW
in certain UN-mandated operations, based on rules of engagement that
would be drawn up by the UN. Those criteria would include: that the
effects would be truly temporary; that the safety ratio would be equal
or better to that of CS; that the effects would be recognisable; that
there would be prior announcement of the possible use; and that there
would be known countermeasures. There are concerns, however, associated
with any UN use of RCA, especially given that such agents would have
to be stockpiled by a state party as the UN does not maintain an active
force or weapons stockpile. In addition, the threat of force with
conventional weapons (i.e., firing into the air) may be just as effective
as the use of RCA - it should not be automatically assumed that there
is a gap in the force continuum that needs to be filled by NLW.
The workshop also considered the position regarding potential use
of RCA in Iraq, where there is a situation of effective control by
US and UK forces. The workshop generally accepted that 'law enforcement'
does not mean or include enforcement of international law.. While
it would not include military use, it could however include maintaining
law and order in a peacekeeping context in an area under occupation.
The opinion was expressed that RCA could be used should it be necessary
to control a riot involving prisoners of war. On the other hand, it
was noted that if RCA had been used by the US during military operations,
and given that Iraq is not a state party to the CWC, Iraq might have
viewed such use as justifying a response with any CW agent.
As a side issue, the question was raised whether a state party could
argue that unfilled munitions were intended to be filled and used
for law enforcement purposes, thus evading what might otherwise be
a violation of the Convention. However, there was no consensus that
Article II, paragraph 1 of the CWC requires a judgement as to whether
the 'types and quantities' are consistent with the purposes not prohibited
- under the definition of 'chemical weapons' this applies to munitions
and devices, as well as toxic chemicals.
Allegations of non-compliance
Six years after the CWC entered into force, there has still not been
a challenge inspection. One of the explanations for this is the perception
that, if a challenge inspection is carried out, something must be
found, if not a 'smoking gun'. It was reported that the United Kingdom
(UK) is attempting to demystify the challenge inspection mechanism
in order to show that they can be used (sparingly) without jeopardising
industrial or government secrets. One of the purposes of challenge
inspections, and the verification regime, is to reduce the corrosive
effect of unfounded suspicions. However, as was pointed out to the
workshop, challenge inspections have to exist in a climate where currently
several states parties allege there are large stocks of chemical weapons
in a certain state party but ongoing OPCW inspections have found nothing.
Nevertheless, there is at least a prima facie inconsistency, and corrosive
impact on the regime, between public statements alleging possession
of chemical weapons and an absence of action to redress this through
the mechanisms in the CWC. (This situation was subsequently highlighted
at the Review Conference by the US statement on the first morning,
which 'named names'.)
In addition to the challenge inspection mechanism, there is also
provision under Article IX of the CWC for consultation between states
parties to clarify and resolve ambiguous situations or concerns about
possible non-compliance. A number of states parties do request information
from others, primarily on a confidential and non-accusatory basis,
which avoids unnecessarily elevating the issue. There is a question
whether the Executive Council should be informed of bilateral discussions
on such matters.
Compliance concerns also exist outside of the Article IX context.
For example, a number of states parties have failed to meet their
Article VII obligations to implement penal legislation, have legislation
targeting only scheduled chemicals instead of incorporating the GPC,
and fail to submit declarations.
Key basic elements of the CWC and their implementation
The General Purpose Criterion (GPC)
The workshop received two presentations on the GPC, outlining its
origins during negotiations, drawing on the BWC purpose-based definition,
and stressing the importance of its implementation. The GPC is clearly
expressed in Article II, paragraph 1(a) and Article VI, paragraph
2 of the CWC. Some of the benefits of the GPC are its ability to anticipate
technological change and to control dual use agents.
The first presentation highlighted three concerns expressed in recent
years in relation to the CWC and GPC. The first is the belief that
there are gaps in the range of weapons outlawed by the CWC. Second
is the increased interest by states parties in so-called NLW. Third
is the increasing attraction to terrorists of using toxic chemicals
for hostile purposes. All of these concerns can be allayed and remedied
by proper implementation (and understanding) of the GPC. Such implementation
is a positive and open-ended obligation by the CWC, in particular
by the requirement in the 'Molander chapeau' in Article VI, paragraph
2 that states parties adopt the 'necessary measures'. The presentation
concluded with suggestions that the Review Conference should formally
reaffirm the central importance of the GPC, and the definition in
Article II, paragraph 2 of 'toxic chemical', as well as calling on
all states parties to fulfil their Article VII undertakings.
Building on this, the workshop then examined implementation of the
GPC. The challenge to the CWC from unscheduled agents, such as some
of the novichoks, mid-spectrum materials such as bio-regulators, and
calmatives was highlighted, although it was also stressed that such
agents are indeed covered by the GPC. A number of international initiatives
have been launched addressing potential risks to the environment and
public health from chemicals, many of which originated with the United
Nations Environment Programme. In implementing the GPC, National Authorities
in states parties should take note of the national and international
programmes addressing the safe management of chemicals, particularly
as these programmes focus on those chemicals which pose the greatest
threat to health and the environment. Again, the Review Conference
was considered to be an occasion on which the importance of the GPC
should be reaffirmed.
In discussion, the view was expressed that the GPC is still not fully
understood by all those involved with the CWC. To increase understanding,
it was proposed that the GPC should be on the agenda of every Conference
of the States Parties, to ensure co-operation to foster understanding.
However, it was noted that so far, there had been no mention of the
phrase 'GPC' in the preparations for the Review Conference and it
was assumed that no such mention was likely in the final documents
emerging from the Review Conference. Instead, the phrase 'comprehensive
nature' of the CWC was used. Suggestions for the reasons lying behind
this reluctance to officially use the term 'GPC' include that it is
not used in the CWC, that some states parties do not accept the term,
and that it is hard to translate into different languages. The very
ambiguity of the term 'General Purpose Criterion' in English
is quite useful. By comparison, reference to the 'comprehensive nature
of the Convention obligations' was thought by some participants to
be an inadequate equivalent to, or expression of, the GPC, which could
be used by some states parties to avoid their obligations.
The method of implementation of the CWC, and GPC, is left up to each
state party, with National Authorities primarily involved in a co-ordinating
role. National legislation to incorporate the GPC (a topic which was
touched upon later in the workshop in more depth) is clearly essential.
In terms of verification activities, these are based on the Schedules,
rather than the GPC - this is a topic which may require revisiting
in future years.
The question of secrecy also exercised the workshop, particularly
in relation to unscheduled chemicals and novel agents. Undue secrecy
was thought to be counter-productive, as knowledge of novel agents
may be useful in keeping industry aware and up to date. The value
of secrecy surrounding novel agents existed in the past, when there
was a possibility of states using chemical weapons or retaliating
with such agents. Given that there is no strictly limited number of
toxic agents that could be used by terrorists, there is no need to
ensure the absolute secrecy of formulae today. The opinion was expressed
that, instead, an aggressive policy of openness might be more advantageous.
In particular, if the nature of the agent used in the Moscow hostage
crisis had been known earlier, treatment might have improved. On the
other hand, one participant noted that some people considered that
some dangerous novel compounds escaped oversight under the current
verification system, which was good reason for maintaining secrecy
around such compounds.
In relation to new agents, the usefulness of international humanitarian
law, and Article 36 of Additional Protocol I, should not be ignored
- it is yet another body of law creating obligations on states parties,
which could be used to draw attention to the issue. While this may
not influence rogue states or terrorists, the CWC should not be viewed
as the only possible solution to the problems.
On a divergent issue, the legality of a deliberate attack against
a chemical plant in a state party, thus releasing toxic chemicals
(which had been stored or produced there for purposes not prohibited)
into the environment, was discussed. During negotiations, while deliberate
attacks against chemical facilities were discussed, there was no consensus
and nothing was included in the CWC on this topic. Under Article X,
paragraph 8 of the CWC, a state party can request assistance and protection
if it considers that chemical weapons or RCA (as a method of warfare)
have been used against it - there is no need for the actor to have
been a state. However, the other limb of Article X, paragraph 8, is
if 'it is threatened by actions or activities of any State that are
prohibited for states parties…'. Thus, under this limb, which
is the most applicable to the scenario of an attack against a chemical
plant, it seems the actor must have been a state, not a terrorist
acting alone. Nevertheless, there are always possibilities for consultation
and co-operation, and for bilateral assistance.
Domestic penal legislation
The workshop received two presentations on the need for, and current
disappointing lack of, domestic penal legislation under Article VII
of the CWC. Not only have almost half of states parties failed to
report implementing legislation to the OPCW, only 28 per cent of states
parties have adequate ('all key areas') reported legislation.
The first paper on the topic of national implementing legislation
argued that there are three areas in which the quality of national
penal legislation can be less than comprehensive: in relation to chemicals;
people; and activities. On the topic of chemicals, the primary question
is whether the legislation covers the GPC, and not simply the scheduled
chemicals, as discussed above. With regard to people, it was noted
that the UK legislation covers government officials, including defence
scientists and members of the armed forces. Finally, the activities
covered should be as co-extensive as the prohibitions in the CWC and,
where possible, should use the language of the CWC.
Despite the present low rate of adequate legislation, the second
presentation stated that there were positive developments in this
area, with the perception of a new mobilisation by states parties
to address the issue of national implementation. For example, the
topic of implementing legislation is addressed in one way or another
by many of the national papers for the Review Conference and it was
expected that the Review Conference would result in a number of proposals
for action in this field. The events of September 11 have increased
the interest of states parties in an enforceable chemical weapons
instrument. By contrast to the position at the time of entry into
force, no longer is national implementation viewed simply as an internal
matter for states parties. Within the OPCW a matrix of requests for
OPCW implementation support and responses is now being created, which
gives a global overview of the state of development of implementing
legislation in each country, the assistance needs of states parties
and information on assistance programmes being delivered. In addition,
an expanded network of legal experts (building on that created in
Latin America and the Caribbean) is being created, with a first meeting
to take place in November 2003. OPCW participation in the work of
the UN Counter-Terrorism Committee may also result in increased political
awareness about aspects of implementation and the need for assistance.
The workshop also discussed some aspects of individual states parties'
implementing legislation, including that of South Africa, which has
omnibus legislation, and the UK and Belgium. Attention was drawn to
the availability of model implementing legislation on the OPCW website,
with some concerns being expressed about the legislation of some states
parties which contain derogations in respect of challenge inspections
- it was thought that if this was used as a model by other states
parties, it might result in the 'ratcheting down' of implementing
legislation.
The CWC: The way ahead
Industry and Trade: maximizing the benefits
The Australia Group was the subject of some discussion by the workshop,
which received a presentation outlining its role and impact as a non-proliferation
regime, emphasising in particular the US experience. Having outlined
the objectives, method of operation and criteria for membership of
the Australia Group, some of its perceived limitations and challenges
to it were also explored. One of those was stated to be the requirement
of consensus when adopting decisions, though others within the workshop
saw consensus as the only way to keep the Australia Group together.
The presenter stated that, while it was necessary for intelligence
to be shared on a classified level, the Australia Group was not 'secretive'.
The Australia Group was also stated to be interested in outreach,
with specific reference made to working with China, India and Russia
to try and ensure the implementation of export controls for technology
mirroring those of the Australia Group. In subsequent discussion,
it was noted that the Australia Group constraints had close parallels
to those for drug precursors for illicit drug production. Questions
were raised amongst the workshop participants as to the consistency
of the Australia Group with Article XI of the CWC.
Under the heading of industry and trade, the workshop also discussed
inspections of DOC/PSF plants under the Convention, with the conclusion
made by one presenter that after some 450 Article VI inspections,
the OPCW now had sufficient experience to warrant a review of the
process of such inspections as indeed the First Review Conference
is required to do under the CWC, and a redistribution of them to increase
DOC/PSF inspections. In a second presentation, issues relating to
the verification of OCPFs and the specificity of SITC codes, different
types of access to the overall facility, and plant/plant site delineation
were outlined.
In a discussion paper that was provided to the Review Conference,
the International Council of Chemical Associations identified relevant
key trends in technology and the market. A number of key positions
were also elaborated. Amongst those were the distinct nature of routine
and challenge inspections, with the need for a useable challenge inspection
mechanism expressed, national implementing legislation, and concentration
on core Treaty obligations. Other topics addressed included: the nature
of the future Schedule 3 regime and, in particular, opposition to
automatic translation of the Schedule 2 ban on exports to states parties
to Schedule 3 chemicals; technical and logistical challenges to sampling
and analysis; safeguarding of confidential business information; and
the impact of terrorist threats. The topic of a Schedule 3 export
ban was one which provoked some debate, with some participants taking
the view that a ban might become the only way in which to induce non
states parties to join the CWC by making it much 'warmer' to be inside
the CWC regime than outside it. Both incentives to join, and disincentives
to be outside the regime, are needed. Given the increasing number
of states parties, the amount of trade affected by a Schedule 3 ban
would be much reduced, and a ban would be simpler to implement than
to require, for example, undertakings. The counter-argument is that
if Schedule 3 chemicals became unavailable, a non state party might
decide to build a facility to produce them. In addition, non states
parties of particular concern, such as Syria and North Korea, were
stated not to generally purchase Schedule 3 chemicals from states
parties, thus meaning that a Schedule 3 export ban would not have
much of an impact on them. The impact of such a ban on Taiwan was
also raised.
States not yet parties
The workshop received an in-depth paper on chemical weapons in relation
to the Middle East, focussing in particular on the deadlocked positions
of Syria, Egypt and Israel towards the CWC. Due to the Arab 'linkage'
approach between chemical and nuclear disarmament, and Israel's reliance
on its (officially undeclared) nuclear arsenal as the ultimate guarantor
of its survival, to date efforts to induce these three states to become
states parties to the CWC have failed. Working on the assumption that
Israel possesses chemical weapons, the presentation analysed the political,
economic and strategic setting in relation to the three states. It
was stressed that there were three misperceptions by the Arab states
regarding Israel's CW capacity, the value of CW to Israel and the
likelihood of Israel foregoing its nuclear option within the perceivable
future. The paper concluded that regional adherence to the CWC would
not destabilize the Israeli-Arab balance and might even be a positive
step towards a common security regime in the Middle East.
In subsequent discussion, the strategic uselessness of chemical weapons
in the Middle East, given the current international environment, was
discussed, and the domestic propaganda value extracted from this issue
highlighted. The international political gains that Israel might make
from taking a first step in this arena were thought to outweigh any
perceived increase in vulnerability.
Law Enforcement
The workshop addressed the problem of 'law enforcement including
domestic riot control purposes' under the CWC - although a separate
agenda item, this issue had also come up during the workshop when
discussing NLW. It was observed that the note from the Director-General
to the Review Conference flagged the issue but merely stated that
states parties might wish to address these issues.
One presentation to the workshop set out the differences between
the approach taken by the US and the UK to 'law enforcement'; in its
simplest form, the US views domestic riot control as a subset of 'law
enforcement', while the UK, emphasising interpretation in light of
the 'object and purpose' of the CWC in accordance with Article 31
of the 1969 Vienna Convention on the Law of Treaties (the 'Vienna
Convention'), views law enforcement as a subset of domestic riot control.
To understand the background to the current ambiguity in the language
of the CWC, it is necessary to review the relevant negotiating history,
the prohibition on RCA as a method of warfare, the declaration requirements
in Article III, paragraph 1(e) which are limited only to RCA, and
state practice since negotiation of the CWC, particularly with respect
to the Moscow theatre events and increasing interest in NLW. The presentation
concluded that there are increasing pressures to ignore constraining
interpretations of the CWC in regard to disabling chemicals, a situation
which required serious attention. To address this, amendment of the
Convention was suggested, to require declarations of the identity
of all chemicals held for law enforcement purposes, not simply RCA.
It was recognised that it might be premature to address law enforcement
at the forthcoming Review Conference, but some multilateral interim
measures were suggested, including affirmation that only chemicals
meeting the definition of RCA be used for law enforcement purposes,
affirmation of the understanding of 'law enforcement' as covering
action taken within the scope of a state party's jurisdiction to enforce
its laws, and tasking the SAB to report on the meaning of the word
'toxic'.
The second presentation to the workshop also focussed on the documentary
history relating to the law enforcement controversy, and the Vienna
Convention, to inform current interpretation. The context (both within
the CWC and in regard to the Geneva Protocol), ordinary meaning, and
the official language versions of the provisions were also stressed.
The conclusion reached was that 'law enforcement' in Article II, paragraph
9(d) could not be interpreted to exempt from prohibition any agent
that is not an RCA as defined in Article II, paragraph 7. A number
of suggestions for further action were made, including the reaffirmation
that the prohibitions of the CWC cover all chemicals regardless of
origin or method of production.
The workshop also received information outlining the attractions
of NLW for a range of groups, including ordinary criminals, despots,
terrorists and the military. The 'non-lethal' nature of such weapons,
both now and in the future when more truly non-lethal agents might
be developed, was also explored, as was the fact that NLW are often
used as an adjunct to, rather than replacement for, lethal force.
Pursuit of chemical incapacitants was seen as the likely first step
towards the exploitation of pharmacology and biotechnology for hostile
purposes, a step unlikely to be restricted simply to domestic law
enforcement. To prevent a new chemical arms race, the possibility
of a new international treaty to prohibit the hostile manipulation
of human physiology was explored. Despite the length of time negotiation
would take and the political challenges, rather than trying to make
existing treaty regimes adapt to new challenges, perhaps a new solution
is required. On the other hand, there is a danger that a new Convention
might detract from the existing treaty regimes.
There was extensive discussion on this topic amongst the participants
of the workshop. One point raised was that the overall objective of
the CWC is to save multitudes (see the preamble to the CWC - 'for
the sake of all mankind'), not simply several hundred people, a goal
best achieved by total prohibition. Furthermore, to let violations
of the comprehensive prohibition contained within the CWC appear to
be legitimate would cause existing international law, built up over
many years by state practice and opinio juris, to suffer. The danger
of linking the law enforcement issue to that of NLW, as 'law enforcement'
relates to toxic chemicals, both of the 'lethal' and 'non-lethal'
kind, was also stressed. The role that the death penalty played in
the negotiating history was emphasised, given the established practice
in a number of states of lethal injections to carry out capital punishment
(portrayed in some countries as 'law enforcement'), with concerns
expressed by some participants as to how far this issue has been extrapolated.
The topic of international criminalization, although on the agenda,
was only briefly discussed, with a short outline provided on universal
jurisdiction (for a fuller account, see the report of the 18th workshop
of the Study Group).
Future work
The workshop closed on the Sunday evening with a sense that discussion
on a number of the topics touched on over the weekend was far from
exhausted. The next workshop of the Study Group, concentrating on
BWC issues, is likely to be held in Geneva, in November 2003.
