Disarmament Diplomacy

The CWC at Three: On the Way Towards a Level Playing Field
By Alexander Kelle

Introduction

From May 15-19, 2000, the Fifth Session of the Conference of States Parties (CSP) to the Organization for the Prohibition of Chemical Weapons (OPCW) took place in The Hague. The session followed shortly after the third anniversary of the entry into force (EIF) of the Chemical Weapons Convention (CWC) on April 29, 2000. 109 States Parties, two contracting states - the Federal Republic of Yugoslavia and Malaysia - and seven signatory states took part in the conference. In addition, one non-signatory state (Libya), 2 international organisations, and 13 non-governmental organizations participated as observers.

The three-year EIF anniversary was significant because of a number of substantive matters which had to be either taken up anew or accomplished by States Parties by that date. The most important of these - meeting the first intermediate deadline for CW destruction, and stopping trade in Schedule 2 chemicals with non-States Parties - will be analysed in detail below. First, however, a brief update on developments in implementing the CWC since the Fourth Session of the CSP in May 1999 is given.¹

Developments since the Fourth Session of the Conference of States Parties

Ten states have either ratified or acceded to the CWC since the Fourth Session of the CSP. For eight of them - Azerbaijan, Colombia, Eritrea, the Federated States of Micronesia, Kazakhstan, Nicaragua, Liechtenstein, and San Marino - the convention entered into force prior to the commencement of the Fifth Session of the CSP. The already-mentioned remaining two participated as contracting states. Both of them became members of the OPCW on May 20. This brings the number of States Parties up to 135, with 37 signatory states and 21 non-signatory states left outside the CW control regime.²

Even three years after EIF, a number of obligations are being poorly implemented by member states, including the submission of declarations and notifications, and making payments to the OPCW on time and in full. Despite this generally bleak assessment, the submission of initial declarations by States Parties has seen a considerable increase since the beginning of the year 2000, reaching full compliance with this stipulation by the beginning of the CSP in May 2000.³ Yet this success is mostly due to the considerable effort the Technical Secretariat (TS) - supported by a small number of States Parties - has made in assuring submission of these declarations. Another positive development in this realm was the submission by the US of its industry declaration shortly before the CSP.

As regards notifications states have to make concerning the designation of their National Authorities, 100 out of 133 States Parties had complied before the CSP. 75 States Parties had provided notifications of the points of entry for inspections on their territory, 62 notifications of the standing diplomatic clearance numbers for non-scheduled aircraft, and a mere 47 notifications of national implementing legislation.⁴

With respect to the payment of their financial contributions to the OPCW, 23 States Parties were in arrears to such an extent that they were losing their voting rights in the organization. The stipulation in the CWC that forms the basis for this sanction is to be found in Article VIII, para. 8 of the CWC, according to which a state that "is in arrears in the payment of its financial contribution to the Organization shall have no vote in the Organization if the amount of its arrears equals or exceeds the amount of the contribution due from it for the preceeding two full years." Yet, even if the total amount which these 23 States Parties owe the OPCW might be considered negligible in terms of the organization's proper functioning, it constitutes a continued violation of a basic obligation States Parties committed themselves to.⁵

States which declare CW or CW production facilities have to live up to an additional financial commitment: under Articles IV and V of the convention they have to reimburse the OPCW for the verification of the destruction of CW-stocks and facilities. Of the nine States Parties to which this provision applies, only four - China, France, Japan, and the UK - had reimbursed the organisation in full. Three - India, Republic of Korea, and the US - had partially reimbursed the organisation and two - Iran and the Russian Federation - had not paid any verification cost under Articles IV and V. The outstanding sum amounts to 9.8 Million Dutch Guilders, roughly three quarters of which have to be reimbursed by the US and another 20 per cent of which are due from the Russian Federation.⁶

On the basis of declarations submitted by States Parties, the Technical Secretariat continued to conduct inspections. Between EIF and May 1, 2000, 698 inspections at 340 sites had either been concluded or were ongoing, including 460 CW related inspections and 237 industry inspections.⁷ Inspections were distributed among the different categories of facilities and sites as follows: 152 inspections to CW destruction facilities, 165 to CW production facilities, 104 to CW storage facilities, 25 to old CW sites, 14 to abandoned CW sites, 63 to Schedule 1 facilities, 116 to Schedule 2 plant sites, and 58 to Schedule 3 plant sites.

In addition to the conduct of routine inspections, the Technical Secretariat - together with Brazilian authorities - in October 1999 conducted a mock challenge inspection in a Brazilian facility. In contrast to previous exercises in the UK and the Netherlands this one covered the whole challenge inspection process and was conducted at a private industrial site rather than a military facility. After having been reviewed by the Secretariat, a seminar to discuss the outcome of the trial challenge inspections in Brazil and the UK was held in February 2000 in The Hague. This seminar clearly showed wide differences in interpretation among participating States Parties as to the character and purpose of a challenge inspection, the circumstances under which it should be requested, and the way it should be conducted.⁸

The Executive Council (EC) of the OPCW met for three regular sessions and four meetings between the Fourth and the Fifth Session of the CSP. In addition to its oversight function vis-à-vis the Technical Secretariat, members of the EC were considering a number of substantive and organizational issues. In the latter category the working methods of the Council were discussed, as were inter alia procedures for the handling of confidential information, the classification of posts within the TS, the effective starting date of the seven-year tenure in the context of the staff rules, and the requirements for reporting information to the Council (from the Technical Secretariat).⁹ In terms of substantive issues, the EC considered the list of inspection equipment and revised specifications for approved inspection equipment, the attribution of costs related to inspection of old chemical weapons, a model facility agreement for CW destruction facilities, and the fostering of international cooperation for peaceful purposes in the field of chemical activities. In addition, the EC decided on a number of facility agreements covering a wide range of types of facilities, as well as combined plans for CW destruction and verification, requests for conversion of CW related facilities, and a request by the Russian Federation to grant an extension to the first intermediate destruction deadline (see below).

Besides regular sessions and meetings, the chairman of the EC conducted the intersessional procedure to address unresolved issues, which the Council had taken over from the CSP's Committee of the Whole. Issues were organized into the following four clusters: chemical weapons issues, chemical industry issues, administrative and financial issues, and legal, organisational and other issues.¹⁰ In the framework of these clusters some of the facilitators already active on specific issues in the past continued their informal work. This eventually led to agreements in both the chemical industry and the chemical weapons clusters, which were then reported to and adopted by the Fifth Session of the CSP.

The Fifth Session of the Conference of States Parties

During the General Debate, 37 of the 109 participating States Parties addressed the CSP. Two states - Portugal and South Africa - were speaking on behalf of the European Union and the African Group, respectively. Recurring themes were the achievements made in the first three years of the OPCW's existence, the continued need to work for universal adherence to the CWC and to improve the convention's implementation by States Parties. More specifically, many delegates welcomed the states which had ratified or acceded to the CWC since the last session of the CSP as well as the submission or completion of initial declarations, especially the industry declaration submitted by the United States shortly before the CSP. Many delegates also addressed the Russian request to extend the first intermediate destruction deadline for that country. Although many expressed concern about Russia's inability to comply with this obligation, a number of delegates also referred to their conviction that all States Parties are and must remain committed to the ultimate goal of complete CW destruction by all declared possessors.

As usual, the Conference had to decide on the Budget and Plan of Work for the next fiscal year of the organisation, i.e. 2001. During past sessions of the CSP finalisation of the budget has proven to be among the most contentious issues, as the EC at the four preceding CSPs was unable to reach a decision on the budget beforehand and then submit it to the conference. Even if this time the procedure once more did not fully play out to the rules, there was considerable improvement in the way budget negotiations were handled. Although the EC concluded its negotiations on the budget only during the Session of the CSP, the conference for the first time had before it a completed draft budget and plan of work to decide upon.

Other decisions submitted to the conference were - as mentioned above - related to both CW and industry issues. In the CW field, a gap was closed with the draft decision on a model facility agreement for CW destruction facilities.¹¹ The South African facilitator for the issue was able to achieve a compromise only after the start of the Fifth Session, but still in time for the conference to adopt the decision.

Another draft decision, which received considerable publicity already in the run-up to this session of the CSP is related to the request by the Russian Federation for an extension of its obligation to meet the first intermediate deadline for the destruction of one per cent of its category one CW-stockpile.¹² This intermediate deadline is specified in para. 17 of Part IV (A) of the Verification Annex to the CWC. According to para. 22 of Part IV (A) a request as submitted by the Russian Federation to extend the intermediate destruction deadline can be submitted to the EC in case "a State Party believes that it will be unable to ensure the destruction of the percentage of category 1 chemical weapons required". It was exactly this procedure which the Russian Federation invoked when it submitted its request to the Seventeenth Session of the EC in November 1999.¹³ In its request the Russian Federation admitted that the construction of the CW destruction facilities is facing economic difficulties, but stressed that Russia intends to catch up with its CW destruction process by the time of the next intermediate destruction deadline on 29 April 2002 when 20 per cent of category 1 CW-stocks will have to be destroyed.¹⁴ According to para. 23 of the same part of the Verification Annex, an extension such as the one granted by the CSP to the Russian Federation "shall not, in any way, modify the obligation of the State Party to destroy all Category 1 chemical weapons not later than 10 years after the entry into force of this Convention." In addition to retention of the 10-year overall deadline, there also appeared to be consensus at the CSP that the Russian Federation will submit a revised plan for destruction of its CW stocks as early as possible.

The most important draft decisions with respect to the chemical industry concern the declaration of mixtures which contain Schedule 2 or 3 chemicals and the transfer restrictions as to chemicals containing low concentrations of Schedule 2 chemicals in trade with non-States Parties to the convention. The first issue has been left over from CWC negotiations in Geneva, "survived" the PrepCom years, and needed a facilitator's attention for the first three years of the CWC's operation before a compromise finally could be found. According to the decision approved by the conference, declarations are required for mixtures of chemicals containing more than 30 per cent of a Schedule 2B or Schedule 3 chemical.¹⁵ This declaration threshold has to be implemented by States Parties from January 1, 2002 onwards. The long time-lag before the decision will take effect obviously was needed in order to get the US government to have its national implementing legislation - which currently forsees a low concentration threshold of 80 per cent - corrected and thus be able to agree to this solution.¹⁶ With respect to Schedule 2A or 2A* chemicals, the conference requested the Director General to task the Scientific Advisory Board to study appropriate declaration thresholds for mixtures containing these chemicals. This report shall then be submitted to the EC and passed on for approval to the Sixth Session of the CSP in May 2001.

A decision on transfers to non-States Parties of mixtures containing Schedule 2 chemicals became essential because of the trade restrictions - contained in Part VII, para. 31 of the Verification Annex to the CWC - taking effect three years after the CWC's entry into force. According to the decision now reached, transfers to non-States Parties are permitted under three circumstances: first, if the products contain 1 per cent or less of a Schedule 2A or 2A* chemical; second, if the products contain 10 per cent or less of a Schedule 2B chemical or; third, if products are identified as consumer goods packaged for retail sale for personal use or packaged for individual use. With a view to the deadline on transfers of Schedule 3 chemicals to non-state parties five years after EIF of the convention, the EC was tasked to prepare a recommendation on how to deal with mixtures containing this category of chemicals and submit it to the next session of the CSP for adoption.

Other substantive decisions before the Conference included one on national implementing legislation, which was based upon a Swiss initiative.¹⁷ In addition, the conference confirmed the EC's decision on a new methodology for selecting Schedule 3 facilities for inspection. Furthermore, the CSP approved several conversion requests related to CW production facilities for purposes not prohibited under the CWC. Four such conversion requests had been submitted by the Russian Federation and two by the UK.

Issues which were referred back by the CSP to the EC included the fostering of international cooperation for peaceful purposes in the field of chemical activities, guidelines for assessing whether designated laboratories may retain this status, the authentication and certification procedure for the Central OPCW Analytical Database and on-site databases, and the implementation of Section B of Part IX of the CWC's Verification Annex, i.e. the verification measures to be applied to facilities producing unscheduled discrete organic chemicals.¹⁸ For all these issues the EC was tasked to submit draft decisions to the CSP in time for its sixth session in May 2001.

From an organizational point of view two issues were of particular concern to the fifth session. The first one relates to the renewal of the Director General's (DG) contract. According to Article VIII, para.21(d) the CSP shall "appoint the Director General of the Technical Secretariat". With the contract of the current DG expiring on May 13, 2001 and the next session of the CSP scheduled to begin only on May 14 of that year, it would have been reasonable to schedule the reappointment of the current DG, José Bustani of Brazil, for the fifth session. Yet nothing of the kind happened during the preparations for the meeting. Only on the Friday before the CSP started did Brazil take the initiative and circulate a draft decision for approval by the conference. This proposal then quickly seemed to gain support from the Latin American and Carribean Group as well as from the US and Russia, so that the renewal of the DG's appointment became rather likely early on in the session. However, there were many criticisms as to the procedural elements involved in this reappointment. The proposal had first to go through the meeting of the Executive Council, which was held in conjunction with the CSP and it was in this context that concerns were voiced "about the hasty process being followed by the Executive Council in the execution of one of its most important tasks, that of recommending to the Conference of the States Parties the appointment or renewal of the Director-General."¹⁹ The statement from the Canadian delegation went on to say that "having the EC make a recommendation to this week's Conference strikes us as premature and unnecessary." Despite these criticisms - and in accordance with Art. VIII, para. 43 of the CWC - the EC decided to renew the DG's contract and passed a draft decision to this end on to the CSP, which adopted it on the last day of the session.

The second issue relates to the appointment of the External Auditor of the OPCW. Since entry into force of the CWC this position was held by the Auditor General of India and was now open for re-appointment. A smooth process was prevented by the fact that three candidates - from the UK, India and Pakistan - were nominated by their delegations. Not only did none of the three want to step back, but, to complicate matters even further, the Asian group was unable to reach a decision on which of the two candidates from its own ranks to support. After informal consultations involving the three States Parties concerned, as well as the chairmen of the CSP and of the Committee of the Whole, a somewhat awkward procedure emerged: the Committee of the Whole was asked in a first step, whether it would be willing to consider a composite bid of India and Pakistan for a duration of 6 years of appointment. Since the result of the first straw poll was affirmative, in a second straw poll the Committee of the Whole was asked whether it would prefer the composite Indian/Pakistani bid or the UK bid. Here the composite bid won out by one state party present and in a position to vote. Not that a vote was formally taken, but in order to get a representative picture in case that a vote would become inevitable, States Parties who were in arrears with their assessed contributions for more than two years did not participate in the straw poll. Subsequently the Committee of the Whole reported this outcome to the CSP, which in turn formally adopted the decision.²⁰

Assessment: Towards a Level Playing Field

Overall, this Fifth Session of the Conference of the States Parties was facing less stumbling blocks on its way to a successful conclusion than the four previous sessions. It was the first time that the clock did not have to be stopped at one minute before midnight on the last day of the CSP. Instead, the session was closed on time. Although this in and of itself does not tell much about the substance that was addressed during the meeting, it may well serve as an indicator of the generally more cooperative and businesslike conduct of this CSP. There also seems to have been a growing realization that the CSP is not a negotiating body. Accordingly, a number of still unresolved issues were either not put on the agenda in the first place or were referred back to the EC for futher consideration.

It was the first CSP to receive a draft budget and plan of work from the EC, whose preparation benefitted considerably from the US industry declaration. Past attempts by other States Parties with a large chemical industry to limit the burden put upon their industries in the absence of any US industry inspections thus were no longer necessary. Although there still is an imbalance in the degree to which chemical industries have received inspections, it is now foreseeable that the existing gap is not going to widen, but instead can be expected to be closed by the end of 2001 or shortly thereafter. This certainly is one of the yardsticks that have to be applied for a judgment on the achievement of a level playing field.

Two more such yardsticks are available in the chemical industry and trade field. The first one is related to the declaration of mixtures containing low concentrations of Schedule 2 or Schedule 3 chemicals. Here, the decision on the percentages to be applied for such declarations will increase transparency and also level out the current uneven implementation across States Parties. Even if the concentration limits are still deemed too high by some States Parties or the grace period for adjusting to the agreed upon levels are regarded as too far in the future, a decision to apply the same low concentration limits certainly represents an important step forward.

The same applies to the decision on transfers of mixtures containing Schedule 2 chemicals to non-state parties. Under the assumption that the low concentration limits will be applied by States Parties domestically, having reached this agreement will minimize imbalances in trade with non-States Parties. In addition, the commencement of inspections of DOC facilities will broaden the range of countries to receive inspections. Up to now, only about one quarter of States Parties has received industry inspections.

The execution of national implementing legislation appears equally uneven. The number of corresponding notifications stands at 47 out of 135 States Parties. It is doubtful whether the States Parties which have not submitted such notifications have actually made the production or use of CW a crime in their domestic penal legislation. Therefore, the Swiss initiative for a draft decision is a timely one geared at closing another loophole in the implementation of the CWC.

In contrast to these positive developments one is left less reassured about the maturity of the OPCW if one considers the processes leading to the reappointment of the Director General and the External Auditor of the organization.

The final word in the creation of a level playing field for all States Parties will, of course, be spoken in the area of CW destruction. Only if the CW possessors live up to their obligation to completely destroy their stocks can a truly level playing field be said to exist. In this context, progress of the Russian destruction program has to be monitored most closely. Reassurances given by the Russian government for extension of intermediate destruction deadline obviously were sufficient for States Parties to grant the request. Yet in the CW realm, Russia is not the only cause of concern: as far as the reimbursement of verification costs in the context of CW destruction is concerned, others too have fallen far behind the obligations they have assumed. This is all the more disturbing if one considers the drawn out consultations on the reimbursable part of the verification costs in the first place. At the end of this consultation process the US and Russia were only willing to accept a solution that placed a smaller burden on themselves and a higher one on the community of member states as a whole. Now even this - from their point of view - favourable solution is not being implemented as agreed.²¹

Also in the CW context, a recent study which raises doubts about the timely conclusion of the US destruction program serves as a useful reminder that States Parties currently meeting or even exceeding their obligations in this regard may well face challenges in the future.²² On a more general level, this is a reminder that the implementation of the CWC will continue to need constant attention as well as adjustments being made along the way. Only then can the more fundamental precondition for the success of the CWC be achieved - a level playing field. The fifth Session of the CSP certainly has made some important steps forward in this direction.

Notes and References

1.For an assessment of the Fourth Session of the CSP see A. Kelle, Problems and Prospects of CWC Implementation After the Fourth Session of the Conference of States Parties, in Disarmament Diplomacy, No.38, June 1999, pp.12-16; Analyses of earlier CWC/OPCW developments are contained in: Setting Up the Organization for the Prohibition of Chemical Weapons,Disarmament Diplomacy, May 1997, pp.9-10; Implementation of the CWC after the Second Session of the Conference of States Parties, Disarmament Diplomacy, December 1997, pp.15-19; CWC Update. Business as Usual in Implementing the CWC? Not Quite Yet, Disarmament Diplomacy, November 1998, pp. 8-12. The OPCW can be visited online at http://www.opcw.org.

2.See the Opening Statement by the Director General to the Conference of States Parties at its Fifth Session, Document C-V/DG.11, May 15, 2000, p.2.

3. See the Report by the Director General. Status of Submission of Initial Declarations and Notifications as of 11 May 2000, Document C-V/DG.8, May 12, 2000.

4. See Document C-V/DG.8, p.1.

5.See Note by the Director General. States Parties in Arreas in the Payment of their Financial Contributions to the OPCW for the Preceeding Two Full Years as of 11 May 2000, Document C-V/DG.10, May 12, 2000.

6.See Document C-V/DG.6, May 9, 2000; note that in this document there is no mentioning of the ROK, instead - like in all other official OPCW documents - reference is made to "A State Party".

7. Figures are taken from OPCW Synthesis, May 2000, p.30.

8. See Progress in the Hague, Quarterly Review No.28, in The CBW Conventions Bulletin, No.46, p.17 and Progress in the Hague, Quarterly Review No.29, in The CBW Conventions Bulletin, No.47, p.7 for further details. Statements made during the February 11, 2000 seminar are reprinted in OPCW Synthesis, May 2000, pp.14-27.

9. See Report of the Executive Council on the Performance of its Activities (30 April 1999 - 2 April 2000), Document C-V/3, 7 April 2000.

10.See Daniel Feakes: 'Progress in The Hague. Developments in the Organization for the Prohibition of Chemical Weapons,' Quarterly Review No. 28, in The CBW Conventions Bulletin, No.46, December 1999, pp.12-19.

11.See Document C-V/DEC/CRP.27, May 19, 2000.

12. See document C-V/DEC/CRP.12, May 2, 2000. The reference to a category of chemical weapons in the context of CW destruction must not be confused with the Schedules of chemicals as contained in the Annex on Chemicals to the CWC. While the former serve to organise the destruction process for CW agents, munitions, devices, equipment or parts thereof, the latter group toxic chemicals according to the risk they pose to the object and purpose of the CWC.

13. See Document C-V/3, p. 11.

14. See the CBW Conventions Bulletin, No. 46, December 1999, p.13.

15.See Document C-V/DEC/CRP.25, May 18, 2000.

16.On this and other peculiarities of the US policy towards the OPCW - and other international organisations - see Bernd W. Kubbig/Matthias Dembinski/Alexander Kelle: Unilateralismus als alleinige außenpolitische Strategie? Die amerikanische Politik gegenüber UNO, NATO und der Chemiewaffen-Organisation in der Ära Clinton, HSFK-Report 3/2000, Frankfurt/Main, May 2000.

17. See Document C-V/DEC/CRP.24, May 18, 2000.

18. For details on these issues, the reader is referred to the quarterly updates on CWC implementation contained in "Progress in The Hague", Quarterly Reviews no. 27, 28, 29, in The CBW Conventions Bulletin, No, 45, 46, 47, respectively.

19. Canada. Statement on the Renewal of the Appointment of the Director-General, Document EC-MX/NAT.2, May 16, 2000.

20. See Document C-V/DEC/CRP.11/Rev.1, May 19, 2000.

21. See A. Kelle: CWC Update. Business as Usual in Implementing the CWC? Not Quite Yet, Disarmament Diplomacy, November 1998, pp.8-12.

22. See Chemical Weapons Disposal. Improvements Needed in Program Accountability and Financial Management, Report GAO/NSIAD-00-80, Washington, D.C.: US General Accounting Office, May 2000.

Dr. Alexander Kelle is a research associate at the Institute of Comparative Politics and International Relations, J.W. Goethe-University Frankfurt, and a guest researcher at the Peace Research Institute Frankfurt.

© 2000 The Acronym Institute.

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