Disarmament Diplomacy

Implementation of the CWC After the Second Session of the Conference of States Parties
by Alexander Kelle

Introduction

After entry into force of the Chemical Weapons Convention (CWC) on 29 April 1997, the First Session of the Conference of States Parties was held in The Hague in May 1997.(1) The fact that the Second Session was followed rather closely to the first one - and not one year after the preceeding one, as it is foreseen in the Convention - was largely due to the delay of the Russian Federation's ratification of the CWC. Thus, the date of the Second Session was chosen to provide an incentive for Russian ratification, while at the same time it was obvious that one of the tasks of the Second Session would be the "accomodation" of Russian interests. One such interest that had been voiced in the past by Russian officials was their adequate representation in the structures of the organization set up to implement the CWC, the OPCW.

A second important task before the Conference was the approval of the organization's budget for 1998. This task was complicated on one side by a still lingering debate over the cost of verifying the destruction of chemical weapons (CW). The other factor which could be expected to complicate matters was the debate over an adequate staffing level in the Technical Secretariat (TS). Here, the interests of the Director General to increase the staffing level within the TS had to be balanced with some new States Parties' interest in achieving adequate representation as well as the interest of the large contributors to the OPCW budget to prevent an explosion of staff related cost.

The third major task before the Conference was the approval of draft decisions taken provisionally in the intersessional period. These decisions were either taken by the Executive Council on a provisional basis and then transfered to the Conference for approval, or had been prepared by one of the facilitators, appointed to conduct informal consultations on several of the outstanding issues that could not be solved during the First Session.

The Intersessional Period

The most visible part of the Technical Secretariat's work in this first intersessional period was the conduct of initial inspections which took place mostly in CW- and Schedule-1 related facilites. Only a few Schedule-2 facilities were inspected before the Second Session of the Conference started on 1 December. The basis for inspections and visits were the initial declarations submitted by States Parties. However, until the end of November only 70 from (then) 102 Member States had submitted such declarations. What is more, out of the 70 declarations received by the TS, a considerable number were incomplete. Despite these deficiencies, some positive surprises were registered in the declarations submitted. Pursuant to Article IV of the Convention three States have declared possession of CW (the United States, India and - most likely - South Korea) (2), which are kept at 26 storage facilities in these three countries. An additional four States Parties declared CW production facilities pursuant to Article V of the CWC (the United Kingdom, China, France, Japan). The number of production facilities that have been declared by the seven States Parties amounts to 34. Also seven States Parties declared old and/or abandoned CW (Belgium, China, France, Germany, Italy, Japan and the United Kingdom).

Notwithstanding the declaration shortcomings, 115 initial inspections and visits were conducted in 21 Member States; more than forty inspections took place in the United States alone. Both the initial inspections in the 34 declared CW production facilites and the initial inspections of the 26 storage facilities were completed in the time frames specified in the Convention, i.e. within 90-120 days for production facilites and 180 days for storage facilities. However, while initial inspections were completed within the time-frame specified by the convention, the same cannot be said for the conclusion of facility agreements.

In addition to initial inspections, continuous monitoring of CW destruction operations had been established at three US CW destruction facilities (the Tooele Chemical Agent Disposal Facility, the Johnston Atoll Chemical Agent Disposal System, and the Chemical Agent Disposal System at Deseret Army Depot, Utah).

States Parties are furthermore under the obligation to notify the TS of any transfer of a Schedule 1 chemical at least 30 days before the transfer takes place. Until November 20, 62 such notifications were submitted by either the sending State Party, the receiving State Party or from both. Only six transfers were reported by both supplier and recipient, which according to the wording of the Convention should be the rule. A mere two out of these six transfers were reported in a timely enough fashion, i.e. at least thirty days in advance, but even in these cases the amount of saxitoxin actually shipped was corrected after the transfer had taken place. Thus, there is still considerable room for improvement as regards this notification obligation.

In order to bring to life the relevant provisions of the Convention, i.e. mainly Article XI, the TS has initiated a number of specific programmes for international cooperation among States Parties including inter alia programmes related to facilitating cooperation in the chemical field, facilitation of bilateral cooperation agreements, a chemical technology transfer website on the Internet, a database of laboratory equipment being sought or offered, and a fellowship database and programme for interns.

The Executive Council (EC) held six sessions during the intersessional period. During each of the meetings it was presented with a status report on implementation by the Director General of the TS. The EC repeatedly urged non-members to sign and/or ratify the Convention and urged States Parties to submit their declarations in time and in full. The latter point cannot but cause some astonishment, since there exists an overlap between EC members and States Parties who either had not submitted initial declarations at all or whose declarations are still incomplete. The US declaration for example did not contain any information on the country's chemical industry.

In order to allow for the continuous monitoring at CW destruction facilities, the EC considered and approved five transitional verification arrangements pertaining to such facilities in the United States. In addition, the Council approved two facility agreements for Schedule 1 facilities in Sweden and Australia respectively. While the approval of these arrangements falls within the purview of the EC, the final decision on requests for conversion of CW production facilities for purposes not prohibited under the Convention rests with the Conference of State Parties. Consequently, two such requests - one submitted by the United States, the other by the United Kingdom - were considered by the EC and then recommended to the Conference for approval.

Other business of the EC included inter alia the consideration and submission of the Draft OPCW Programme and Budget for 1998 to the Conference, consultations on the provisional interim OPCW staff rules as well as the organization's draft financial rules, discussions on the draft agreement concerning the relationship between the United Nations and the OPCW, the consideration of a request for delay in the start of destruction of a CW production facility, and the manner in which the Convention's requirements should be implemented as regards the provision of end-user certificates by States not Party to the Convention prior to the receipt of Schedule 2 or 3 chemicals from States Parties. The last three issues could not be solved during the EC meetings that were held in the intersessional period.

The First Session of the Conference of States Parties established an Intersessional Procedure for addressing issues that had remained unresolved during the work of the Preparatory Commission and the First Session of the Conference. According to these procedures the Chairman of the Committee of the Whole of the First Session of the Conference was tasked to designate facilitators who should address specific unresolved issues. Although this decision was taken in May it took until mid-September when the first assignments of facilitators to unresolved issues took place. In other words, facilitators were left with approximately ten weeks for consultations in order to solve the issues on which CWC Member States were unable to agree during four years of PrepCom work.

Altogether fourteen facilitators were appointed, covering inter alia issues as wide-ranging as facility agreements for Schedule 1 and Schedule 2 facilities, types of equipment for specific types of inspections, issues related to Articles X (Assistance and Protection Against Chemical Weapons) and XI (Economic and Technological Development), the terms of reference for the Scientific Advisory Board, issues related to challenge inspection, old and abandoned CW, cost of verification in relation to Articles IV (Chemical Weapons) and V (CW production facilities), industrial declaration issues, and the conversion of CW production facilities. Four of the fourteen facilitators were able to produce compromise proposals, three of which were submitted to the Second Session of the Conference of States Parties.

The Second Session of the Conference of States Parties

Eighty-one States Parties, two of which became Member States during the course of the session (Iran and Russian Federation) participated in the Second Session of the Conference of States Parties from 1-5 December in The Hague. In addition, 19 signatory States, two non-signatories as well as four international organizations and eight non-governmental organizations attended the meeting. A number of themes recurred throughout the general debate. They included the welcoming of recent accessions to the Convention, the emphasis on the need of all States Parties to comply with their obligations in time and in full, the concern that still outstanding issues be resolved as soon as possible to the satisfaction of all parties concerned, and the urgency of approving a budget for operations in 1998, including the need to agree on how costs of verification related to CW facilities are to be reimbursed by the States Parties concerned, that is States Parties on whose territory the facilites are located.

Negotiations on the 1998 budget were additionally complicated by a debate on the appropriate staffing level of the TS and the requests by some new States Parties who demanded adequate representation in the staff of the organization. These interests were confronted by the unwillingness of other States Parties who shoulder a high percentage of the cost of running the organization to see the regular OPCW budget increase much above the provisionally agreed upon level of NLG 122 million for 1998. Already during past negotiations between the Director General and the EC the number of requested additional secretariat posts had roughly been cut by half. The remaining eight general services (GS) posts, however, were only partially compatible with the interest of particularly Russia and Iran to be represented in the higher echelons of the OPCW's structures. A renewed increase in additional posts was ruled out by members of the Western European and Others Group (WEOG), who contribute the largest part of the budget. According to the compromise eventually found in this zero-sum game the Russian Federation receives one D-1 post (Director for Special Projects) and Iran - after agreeing to the scale of assessed contributions for 1998 - got one P-5 post on Emergency Assistance. As a result, only four of the GS posts requested by the Director General survived these behind-the-scene deals.

In addition to the debates directly concerned with the assessable budget for Member States, the debates surrounding the organization's miscellaneous income, including cost of verification under Articles IV and V of the Convention will impact on the regular part of the budget, too. The less States Parties are willing to live up to their obligation to pay for verification of their CW stockpiles and production facilities, the more these costs will have to be covered by all States Parties collectively. The fact that CW possessor States are on the verge of violating the "possessor pays" principle enshrined in the Convention does not prevent both the United States and Russia from attempting to keep the reimbursable part of verification costs as small as possible. The bone of contention in this context is the question what exactly constitutes an inspector's salary. While a compromise solution was found during the First Session of the Conference of States Parties in May in the absence of the Russian Federation, the debate was kept alive during the intersessional period and a proposal submitted by the facilitator designated to the issue was not able find the required support. In order to overcome the impasse during the Second Session of the Conference, an even weaker wording was negotiated - leaving an ever wider margin for Member States' interpretations - and debates on the issue will have to continue within the EC.

Two facilitator's proposals were submitted in addition to the one on cost of verification: they concerned industry declarations and issues related to Articles X and XI of the Convention. While the latter one did not find the approval of the Conference, the first one did. Accordingly, the term "production" as used in subparagraph 12 (a) of Article II should be understood to include a scheduled chemical produced by a biochemical or biologically mediated reaction. With respect to the declaration of low concentrations of Schedule 2 and Schedule 3 chemicals contained in mixtures, States Parties should clearly indicate what concentration limits were applied for plant site declarations.

The remaining outstanding issues can be subdivided in three categories: first, issues that were explicitly transfered to the EC for resolution, for example the reporting of aggregate national data for Schedule 2 and Schedule 3 chemicals in the context of industry declarations. Issues whose solution had been overtaken by events fall in the second category. A case in point is the negotiation of model facility agreements for Schedule 1 and Schedule 2 facilities. Two agreements for Schedule 1 facilites have already been approved by the EC, negotiations on other facilities are underway. Thus, there is no longer a need for a model agreement. The third category encompasses all issues that have again been transferred to intersessional consultations coordinated by facilitators. Although the new intersessional process to a considerable degree resembles that of the past, some new provisions were included to take into account criticism voiced by new States Parties and provide for a greater regularity in the consultative meetings and for more transparent procedures giving States Parties a greater lead-time for preparation. An Iranian proposal to establish a formal negotiating mechanism with a clear mandate and time-table according to which issues had to be resolved did not find the necessary support.

Other business of the Second Session of the Conference included the election of 20 new members to the EC whose appointments will take effect in May 1998. In addition, the scale of assessed contributions was approved, according to which no State Party will pay more than 25% and 0.01% will constitute the lower floor rate for calculating the contributions for 1998. After a lengthy debate the use of two converted CW production facilities for purposes not prohibited by the Convention was approved by the Conference. Furthermore, the Terms of Reference for the Scientific Advisory Board were agreed upon and the Conference provisionally approved the Operating Procedures of the Confidentiality Commission, subject to no objection being made by a State Party until 15 January 1998. The date for the Third Session of the Conference of States Parties was set for 16 - 20 November 1998.

An Assessment of Progress Made

The triple task of achieving progress in the substantive work of the organization, reaching agreement on the 1998 budget and accomodating the late-comers Russia, Iran, and, to a lesser extent, Pakistan, certainly made this Second Session of the Conference of States Parties not an easy exercise. These challenges were aggravated by the fact that the OPCW obviously cannot yet avail itself of an experienced Technical Secretariat, and that the whole organization - to some extent - is still in search of itself.

Given the short duration of the Second Session of the Conference of only one week and taking into account the need to agree on the 1998 budget, much progress in terms of substantive work could not be expected to occur during the Conference itself. But even if one takes the compromise solutions proposed and introduced by three of the facilitators as a yardstick, the result does not look too promising. Only one of the proposals, the one on industry declarations, was approved by the Conference. If one looks closer into the substance of the agreement, one finds one of the issues, i.e. aggregate national data, referred to the EC, and another one papered over with a wording providing for an explanation of national declarations on low concentrations in mixtures. The goal, however, that had been pursued for years during the preparatory phase, before entry into force of the Convention, to harmonize national declarations on low concentrations, obviously was given up. It may thus happen that the TS gains knowledge of the concentration limits applied in all national declarations. It remains to be seen, however, the extent to which declarations will be comparable.

The accomodation of the interests of new States Parties proved to be difficult since the demands put forward by these States were directed either at reducing the costs they have to cover because of their accession to the Convention, or at achieving a maximum representation in the organizational structure in terms of post assignments, or at delaying the implementation of already agreed upon compromise solutions before their accession, as in the case of the rules of procedure of the Confidentiality Commission.

Two of the approaches to cut costs, especially for CW possessor States will very likely be among the most salient issues debated in The Hague in the foreseeable future: the conversion of CW production facilities, and the cost of verification as regards the destruction of CW and CW production facilities. As regards the conversion of CW production facilites the scrutiny applied during the Second Session to the US request to use such a converted facility might be taken as an indicator for debates to come. Clearly, the preference of China, Pakistan and others is to leave the conversion of CW production facilities as a remote possibility in exceptional cases of urgency, while keeping the complete destruction of such facilities as the norm. The Russian Federation, in contrast, has explicitly expressed its expectation that future conversion requests should be handled in a rational, economically sound way, which would make economic decisions of States Parties - meaning possessors of CW production facilities - easier.

Similarly, the Russian approach to the reimbursement of costs of verification of the destruction of CW and CW production facilities aims at reducing its own share of the burden, regardless of the provisions of the CWC. While the compromise achieved during the First Session of the Conference undoubtedly had inspectors' salaries mentioned as a reimbursable item to be covered by the inspected State Party, there is considerable concern after the Second Session of the Conference that the wording agreed to might allow an interpretation by Russian authorities that salaries of inspectors do not have to be reimbursed. If this were to happen, it would amount to nothing less than an amendment of the Convention through the back door of treaty implementation. Since it is doubtful that non-CW possessors would allow this to happen, the issue could well lead to a major crisis over the implementation of the CWC.

The ad hoc creation of the position of a Director for Special Projects as well as a Division Head for Emergency Assistance can be expected to lead to an additional reshuffling of competencies and support staff in the TS. This undoubtedly will not contribute to the smooth operation of the Secretariat and might even lead to requests for additional GS posts, which can in turn be expected to trigger another lengthy debate on the adequate staffing level of the TS.

The unequal national implementation of the provisions of the CWC, if perpetuated, can be expected to either lead to severe criticisms by those States Parties who fully live up to their obligations or to an adaptation of their behavior resulting in a lower stringency with which they implement the provisions of the Convention. This is especially pertinent in terms of industrial declarations and, following from that, inspection activities that industry has to cope with. Being put at a disadvantage as compared to competitors from other countries will certainly not be tolerated by industries in States Parties who fully comply with their obligations under the Convention.

In addition, there is growing evidence that the consistency with which end user certificates by non States Parties who are recipients of Schedule-2 and -3 chemicals are requested, varies greatly. In the case that certificates provided by private companies and individuals continue to be accepted instead of governmental end use certificates, the small group of supplying States who - following to the stipulations of the CWC - insist on the latter group of certificates can almost certainly be expected to scale down their requirements, too. By threatening to lower the overall standard for end use certificates to non States Parties, a group of CWC Member States is putting at risk a long term security benefit to be derived from the Convention, i.e. the prevention of dual use chemicals and equipment finding its way into the CW program of a proliferant who is not a State Party to the Convention, for the realization of short term economic benefits. This is a short-sighted and dangerous approach to implement the CWC, which has to be prevented by all means available.

Notes and References

1. For an assessment of the First Session see Alexander Kelle: Setting Up the Organization for the Prohibition of Chemical Weapons, in Disarmament Diplomacy, Issue No. 15, May 1997, pp.9-10.
2. See for example The CBW Conventions Bulletin, Issue No.37, September 1997, pp.8, 24, 33.

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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