Disarmament Diplomacy

Setting Up the Organization for the Prohibition of Chemical Weapons
by Alexander Kelle

The First Session of the Conference of States Parties to the Chemical Weapons Convention (FSCSP) - scheduled for 6-23 May 1997 - concluded on the evening of Saturday 24 May. 117 of the Convention's 165 signatory States participated in the Session, of which 80 States had deposited their instruments of ratification before the Convention's entry-into-force on 29 April, entitling them to participate in the decision-making during the Conference. Decisions had to be taken in three main issue areas:

• the approval of provisional decisions taken by the Preparatory Commission of the Organization for the Prohibition of Chemical Weapons (OPCW);
• the solution of issues left outstanding by the Preparatory Commission;
• the setting up of the organizational structure of the OPCW to allow for the new organization's proper functioning.

A summary of progress

The first of these tasks, the approval of the draft decisions and recommendations prepared by the Preparatory Commission and the Provisional Technical Secretariat of the OPCW, did not cause much trouble. Practically all speakers during the initial four-day general debate welcomed the progress made by these two bodies. The vast majority of draft decisions were approved without modifications.

The adoption of all these decisions, however, was contingent on the ability of the Conference to agree on its rules of procedure in the first place. The main bone of contention in this regard was the participation in the decision-making of the FSCSP of signatory States which had not ratified the Convention. Apparently, China supported the Russian Federation, Pakistan and Iran in their unsuccessful attempt to gain access to, and have a right to speak in all the meetings of, the Conference and thus be able to exercise some influence over its decision-making process. Instead of granting signatory States these rights, the Conference decided to 'switch back' from committee work to plenary sessions several times, so that signatories could voice their opinions and distribute position-papers to delegations.

The second task of the Conference - solving these outstanding substantive issues necessary to enable the newly-established OPCW to take up its duties - turned out to be much more difficult. The most prominent such issue was the approved list of inspection equipment. Without such a list, inspected parties would be able to reject inspection equipment as they see fit.

Initially, the Conference made progress when China and India withdrew their demand to have different lists of equipment for different types of inspection. The approval of one consolidated list nevertheless remained blocked because of India's request that all inspection equipment had to be commercially available to States Parties.

According to the compromise formula accepted by India on the last day of the Conference, all Member States have the right to familiarise themselves with inspection equipment before it is brought to the State. Should an inspected State feel deprived of this right, it can refuse the utilization of inspection equipment.

Since it could be foreseen early in the Conference that only a small fraction of the outstanding issues would be resolved by its closure, a mechanism was adopted that allowed the unresolved issues to be addressed during the first intersessional period. Again, the degree of participation that signatory States should be granted proved contentious. As in the debate over the rules of procedure, China favoured greater participation of signatories, while the US led the group of States Parties which obviously felt that there had to be a visible distinction between Members and non-Member States. In addition, the degree of the formalization of the consultation process was contested.

The compromise that was finally reached provides for a rather informal process in which so-called 'facilitators' will be appointed to solve specific issues assigned to them. There will not be a clustering of issues, and with respect to signatory States it was decided, on the day before the Conference ended, that they "shall be given reasonable opportunity to express their views during the facilitator's consultation process."

These controversies complicated the third task of the Conference - the setting up of the OPCW. First of all, it took a week before all 41 Members of the Executive Council were nominated and approved. Only after the constitution of this organ could the Director General (DG) of the OPCW, the Brazilian diplomat Jose Mauricio Bustani, be elected. India was given the chairmanship of the Executive Council for the first year of the Organization's operation. Once this was accomplished, debates focused on the OPCW's top structure and the distribution of posts among the five regional groups as well as the organization's first budget.

According to a proposal submitted by the DG, the Western European and Others Group (WEOG) was to receive three of the nine top positions, while the Latin American and the Eastern European Groups in contrast were allotted only one post each. However, the regional distribution of the OPCW's top-positions turned out not to be all that controversial. Rather, it was overshadowed by a struggle over the classification of the Director General's post and the subsequent gradation of his Deputy and the Directors of the Technical Secretariat.

Apparently, a contract had been set up and signed by the newly-appointed DG which foresaw for him the 'rank' of Undersecretary General in the United Nations hierarchy. This is, in and of itself, nothing unusual - the Director General of the International Atomic Energy Agency, for example, holds a comparable position. However, the contract was obviously formulated and signed without prior consultation with Member States. This unusual procedure, and the prior assumption of some influential States that the top-post of the OPCW would be accorded the rank of an Assistant Secretary General, led to fierce resistance by a small group of States, led by a WEOG delegation. It was only overcome in the early-morning hours of the FSCSP's last day when all delegations eventually were willing to approve the DG's contract.

This controversy was the main obstacle to a timely conclusion of the FSCSP, as it delayed - together with the debate about a list of approved inspection equipment - the drafting of the OPCW's first budget. The calculation of this budget was made even more complicated by the US insistence on externalising a great portion of the verification costs associated with the destruction of its chemical weapons (CW) arsenal. The initial US proposal envisaged that most of the verification costs should initially be covered by the Organization, which would be reimbursed only after the completion of inspections. This, however, would have increased the OPCW's budget and, accordingly, the contributions of all member States. Consequently, the US proposal met with considerable resistance from most Member States. According to the compromise eventually reached, the US will, from the outset, cover all those expenditures directly and unquestionably related to verifying the destruction of its arsenal.

An Assessment

At first glance, the large number of decisions formally taken by the Conference - more than 75 - suggests a prevailingly cooperative attitude. However, one has to take into account the fact that the great majority of these decisions were prepared during four years of intense negotiations in the Preparatory Commission of the OPCW and thus had only to be approved by the Conference.

In fact, the willingness to compromise appears to have been quite limited during this inaugural Session. Only those issues absolutely necessary to establish a functioning Organization were taken up by delegations. This is not to diminish the achievements that were made with regard to creating the organizational structure of the OPCW's Executive Council and its Technical Secretariat led by the Director General. Nevertheless, these successes should not lead to overly optimistic expectations or an assumption that only some minor issues need to be resolved by the consultation process set up for the interesessional period. On the contrary, the still outstanding issues are numerous and significant.

The final report of the FSCSP lists 24 unresolved issues, among them guidelines for detailed procedures for verification of CW production and storage facilities, old and abandoned CW sites, challenge inspections, investigations of alleged use, as well as model arrangements for a variety of CW-related facilities. In addition, the report recorded "no statement" on outstanding issues related to international cooperation for peaceful purposes in the field of chemical activities.

With respect to all these issues, the dearly held and mutually exclusive positions of various delegations prevented resolution. It is therefore doubtful that the intersessional consultation process will yield the hoped-for results. In cases where timelines set by the Convention demand ad hoc solutions, these are likely to be taken by the Technical Secretariat. It can be expected that the approval of these provisional decisions will be hotly debated by the OPCW's political organs - either in the Executive Council, or during the next Session of the Conference of States Parties which is scheduled for early December 1997.

Dr. Alexander Kelle is Research Associate at the Non-Proliferation Project of the Peace Research Institute Frankfurt (PRIF).

© 1998 The Acronym Institute.

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