Disarmament Diplomacy

Issue No. 62, January - February 2002

Opinion & Analysis

The First CWC Review Conference: Challenges and Opportunities

By Alexander Kelle

Introduction

The first Review Conference of states parties to the 1997 Chemical Weapons Convention (CWC) is due to take place in the spring of 2003. While this may seem a distance prospect, serious diplomatic and academic consideration is now being given to the event¹, which is certain to face issues of momentous import to the future vitality of the implementation regime operated by the Organisation for the Prohibition of Chemical Weapons (OPCW) in The Hague. This paper summarises and assesses the organisational and political challenges confronting the preparatory process and the Convention itself as it enters potentially the most turbulent and stressful period of its short history.

Review Provisions

The Convention contains two provisions relating directly to the review procedure. According to Article VIII, paragraph 22:

"The Conference shall no later than one year after the expiry of the fifth and the tenth year after entry into force of this Convention, and at such other times within that time as may be decided upon, convene in special sessions to undertake reviews of the operation of this Convention. Such reviews shall take into account any relevant scientific and technological developments. At intervals of five years thereafter, unless otherwise decided upon, further sessions of the Conference shall be convened with the same objective."

In addition, Part IX of the Verification Annex contains in paragraph 26 a requirement that:

"At the first special session of the Conference convened pursuant to Article VIII, Paragraph 22, the provisions of this part of the Verification Annex shall be re-examined in the light of a comprehensive review of the overall verification regime for the chemical industry (Article VI, Parts VII to IX of this Annex) on the basis of the experience gained. The Conference shall make recommendations so as to improve the effectiveness of the verification regime."

Comparable Review Procedures in Other Non-Proliferation Regimes?

Given the uncharted nature of the CWC review process, what lessons can diplomats and others derive from other non-proliferation regimes concerning the effective, or conversely problematic, conduct of treaty reviews? Superficial similarities with both the Biological Weapons Convention (BWC) and nuclear Non-Proliferation Treaty (NPT) provisions regarding the five-year intervals of review conferences are obvious, but essentially do not go much deeper.

The BWC does not have an implementing organisation to conduct and coordinate the day-to-day operations required to verify that member states are living up to the obligations they have assumed under the treaty. And although the International Atomic Energy Agency (IAEA) is implementing part of the NPT's provisions, it has to be recalled that the original rationale for creating the IAEA was not for it to function as a treaty-implementing body. The Agency's establishment (1957) preceded the entry into force of the NPT (1970) by over a dozen years. Even today, while there is a very large degree of overlap in terms of NPT and IAEA membership, the participation of non-NPT states currently precludes a 100% identity. As a result, the IAEA's role in NPT reviews is by and large confined to providing background documentation to the Review Conference related to those parts of the Treaty administered by the Agency.² Thus, the CWC review process will have to largely orient itself on the basis of its own requirements and the special character of the Convention.

The Review Process and the Conference of the States Parties

There is a close and important relationship between the Conference of the States Parties (CSP) and the Review Conference. Article VIII, paragraph 20, notes that the CSP "shall oversee the implementation of this Convention, and act in order to promote its object and purpose. The Conference shall review compliance with this Convention." (Emphasis added.) Two basic, practical considerations draw out the scope and importance of the CSP's role. First, treating the Review Conference as a "political matter of major importance" and not as "technical or legalistic exercise" requires a detailed analysis of CWC implementation over its first five years of operation.³ Only through such an analysis can the broad picture emerge, allowing for political review and assessment by member states. Secondly, we can refer to the actual conduct of the six regular sessions of the CSP that have taken place up to now, all of which had foci different from that of simply reviewing compliance. The following list gives an indication of the topics that dominated the CSPs (in roughly chronological order, but not claiming comprehensiveness).

setting up the OPCW, deciding on the Secretariat's structure
agreeing a list of inspection equipment
establishing procedure to address unresolved issues
accomodating late-comer states' interests
finalising the OPCW budget during the CSP session
sorting out the relationship between Technical Secretariat (TS) and the Executive Council (EC)

In sum, while the Review Conference must be grounded in a thorough review and assessment of the first five years of the OPCW's operation, it must not be allowed to stop at that point. Rather, participants must then venture to answer the question, what does this all amount to in terms of overall progress, prospects and selection of priorities.⁴

For the purposes of this paper, it is assumed that the review will deal separately with each of the three substantive pillars on which the CWC rests: disarmament, non-proliferation, and cooperation and assistance.⁵

Review of Disarmament Obligations

The review of disarmament obligations will have to start with the declaration of chemical weapons (CW), CW related facilities, and the submission of destruction plans. On the positive side, one has to note that four CWC states parties have declared the possession of CW stockpiles at 33 locations. Before these declarations were made, only the US and the Former Soviet Union/Russia had officially acknowledged CW stocks, but not India or South Korea. Eleven states parties have declared a total of 61 current or past CW production facilities. Nine states parties have declared themselves to possess stocks of old chemical weapons (produced before 1946), and three declared that CW had been abandoned on their territory by other states.

These declarations form the basis for OPCW inspections. Between entry into force and August 2001, roughly 650 such inspections were conducted, with almost 600 devoted to CW-related facilities and the remainder divided among sites containing old and abandoned CW. Although most of the CW-related inspections were conducted without major problems, there are three areas of concern which will have to be addressed during the review process:

1) Compliance with Destruction Deadlines

Compliance with destruction deadlines spelled out in the CWC is more than questionable for the Russian Federation.⁶ In addition, the fate of the US destruction program and its timely completion cannot be taken for granted.⁷

2) Reimbursement of Verification Costs

Delays in reimbursement of verification costs by CW-possessor states to the OPCW have substantially contributed to the financial crisis the organisation experienced during the first half of 2001. The jury is still out on the success of the measures taken to address the underlying problem.⁸ Thus, it might be the case that the Review Conference will not be able to characterise the financial crisis as an "historic" event, but instead will have to confronts the issued raised to a more substantial degree.

3) Conversion requests for CW destruction facilities

The question of requests for converting CW production facilities might well emerge as an issue prior to the Conference. Certainly, some states parties perceive the high number of such requests to run counter the letter and the spirit of the CWC which, in Article V, para.13 stipulates that a state party "may request, in exceptional cases of compelling need, permission to use a chemical weapons production facility specified in paragraph 1 for purposes not prohibited under this Convention." It is obvious from this wording that conversion requests are envisaged as an exception, not a rule.

Review of Non-Proliferation Obligations

A considerable number of chemical industry declarations, from many states parties, have been late, incomplete, or both. The extreme delay of almost three years in the submission of the US industry declaration has caused a serious imbalance in the distribution of industry inspections among states parties. Furthermore, despite repeated attempts to resolve the issue, the reporting of aggregate national data on chemical industries has not been harmonized. Similarly, the declaration requirements for chemical mixtures containing Schedule 2A and 2A* chemicals are still unclear.⁹ All these difficulties combine to paint a picture of widespread unwillingness on the part of numerous states parties to compromise or take the steps necessary for the effective implementation of crucial stipulations of the convention.

The number of Article VI inspections covering industry and other facilities in which scheduled chemicals are produced, processed or consumed, amounted to some 480 by August 1, 2001. Around one hundred of these inspections took place in Schedule 1 facilities, which usually are not of a commercial nature. During the remaining Article VI inspections, a disturbing tendency emerged which could undermine the long-term viabilty of the industry inspection regime: the request of states parties to copy inspector notebooks. This runs counter to a section of the Verification Annex clearly stating that "the papers and correspondence, including records, of the inspection team shall enjoy the inviolability accorded to all papers and correspondence of diplomatic agents pursuant to [...] the Vienna Convention on Diplomatic Relations".

Trade in Schedule 2 and 3 chemicals with non-CWC members is another area of concern and difficulty. Parts VII and VIII of the Verification Annex set up a gradual transfer regime for such trade: during the grace periods stipulated, end-use certificates are required for such trade to take place. Yet, the type of trade and the question of appropriate issuing authorities were hotly contested among states parties for some time. Although the matter was resolved on paper during the third session of the CSP in November 1998, the degree to which the agreement is actually being implemented is still viewed as questionable. Similarly, the restrictions on trade with Schedule 3 chemicals is still unclear. If the next CSP should only be able to reach a procedural decision on this issue, the Review Conference might find itself having to deal with the substance of the matter.

Review of Relevant Scientific and Technological Developments

Insofar as relevant scientific and technological developments are concerned, a number of issues could be addressed by the Review Conference. The first relates to the schedules of chemicals and the questions of whether the chemicals are still rightly placed, whether new chemicals of concern will have to be included and what the conference can and should do about the renewed interest in non-lethal CW agents. This latter issue should be of especial concern, as the development and deployment of non-lethal chemicals by states parties might exploit a loophole in the Convention potentially leading to a subtle but serious undermining of basic CWC tasks.¹⁰

Other new scientific developments, for example in the area of drug research, might also be misused for weapons purposes. In this regard it has been pointed out that the pharmaceutical industry through combinatorial chemistry is identifying about 50,000 highly toxic compounds each year. This could result in covert CW programs utilising precursor chemicals and actual CW agents not being monitored in any way.¹¹ Furthermore, the review of new scientific developments will have to place special emphasis on the area of possible overlap with the BWC, especially in light of the recent failure to conclude a BWC compliance protocol. In this context, in addition to continued coverage of toxins, new developments in the understanding of bioregulatory peptides might be an appropriate topic for discussion.¹²

A promising development with regard to the effective review of new development is the cooperation between the OPCW and its Scientific Advisory Board and the International Union of Pure and Applied Chemistry (IUPAC) aimed at providing a thorough review of scientific and technological developments relevant to the CWC in time for the Review Conference. Specifically, this "review will focus on two areas: synthetic organic chemistry ... and analytical chemistry and how that field can contribute to the ... verification of the CWC."¹³

Conclusion: Effective Preparation for the First CWC Review Conference

The effective preparation for the first CWC Review Conference requires not only, or primarily, the supportive work of committees and advisory boards but also the concerted involvement of all actors required for the conclusion and entry into force of the Convention.

Each member state should critically evaluate its own performance over the first five years of treaty implementation. Certainly, a number of key states parties could improve their performance with regard to the submission of notifications and declarations as well as the formulation and enactment of domestic legislation. Similarly, some states parties might ask themselves whether in the conduct of Article VI inspections on their territory they have been overprotective of their national industries. It is essential that the Review Conference reaffirm the continued viability of the general purpose criterion enshrined in the Convention, which is irreplaceable as a yardstick for all types of verification activities, including industry inspections.

In more general terms, there is plenty of room for improving member states' performance in various areas of treaty implementation. Against this background, less emphasis should be placed on the expansion of the OPCW's membership, which has probably reached a plateau, from which it will be difficult to achieve an increase contributing significantly to the realisation of the Convention's goals. This is not to devalue the accession of additional states to the CWC, but to take into account the political reality that those states whose membership would make the biggest difference, i.e. from the Middle East, are currently least likely to join. If this reality does not change, as hopefully it may before 2003, member states might want to place greater emphasis on keeping their own house in order and improving the operation and efficiency of the regime. Indeed, serious regime weaknesses are hardly likely to encourage universality, and may even provide an excuse for non-membership.

Urgent issues closer to home concern the relationship among OPCW organs, i.e. between the Technical Secretariat and the Executive Council, as well as the working mechanisms of the latter. In both regards, past performance has been suboptimal and the review process should devise better ways for collaboration within the OPCW as well as decision-making by the Council. Deficiencies in these areas have led some OPCW members to question whether all states parties, and all individuals employed in the organisation, are always acting in "good faith" towards the common goal of the most effective implementation of the CWC's provisions. Clearly, even the existence of such questions reflects a growing suspicion that some participants in the CWC control regime are more interested in exerting the greatest possible influence on their own behalf and for their own ends, with the ethos and health of the regime as a whole assuming secondary importance. Such perceptions have to be corrected, not only by well-worded speeches, but through concrete measures bolstering implementation. The Review Conference presents the unique opportunity for correcting the course of events.

In order to make possible such a political recommitment, the practicalities of the Review Conference should be decided upon well in advance. The seventh regular session of the CSP, scheduled for October 7-11, 2002, would provide the ideal venue for this. The CSP should therefore draft and, if possible, decide upon the rules of procedure for the Review Conference. This will involve resolving the following two issues: should the Conference conduct its work through Main Committees reflecting the basic pillars of the CWC; and will the review of the relevant scientific and technological developments be treated separately as a cross-cutting issue or incorporated into the work of the Committees? Secondly, the CSP should determine the form of the desired outcome to the extent possible. Do states parties want separate documents covering the review and the way ahead? Should an action plan be formulated? Last but not least, the CSP should give clear guidance to the technical secretariat, clarifying which background documentation it expects to be provided for the Review Conference. Even with such smooth and comprehensive preparations, the Review Conference itself will be the litmus test of the collective mood and commitment of states parties. But without such preparations, the task of delegations will be unnecessarily, and perhaps unaffordably, complicated.

Notes and References

See for example Opening Statement of the Director General to the Conference of the States Parties At Its Sixth Session, The Hague, OPCW, May 14, 2001; Michael L. Moodie, 'Issues for the First CWC Review Conference', in Jonathan B. Tucker (ed.): The Chemical Weapons Convention - Implementation Challenges and Solutions, Washington, D.C.: MIIS, April 2001, pp.59-65; Pamela Mills, The First Review Conference of the Chemical Weapons Convention: Possibilities and Preparations, Paper presented at the 15th Workshop of the Pugwash Study Group on the Implementation of the Chemical and Biological Weapons Conventions, Oegstgeest, The Netherlands, June 23-24, 2001.
In addition, IAEA staff usually provided backup for the deliberations of the main committee dealing with the peaceful uses of nuclear energy; for a analysis of the organisational structures of NPT Review Conferences see for example Rebecca Johnson, The Non-Proliferation Treaty: Challenging Times, ACRONYM Report No.13, London, February 2000.
Statement by the Director General, Jose M. Bustani, to the Sixth Session of the CSP; see endnote 1.
See Michael L. Moodie, 'Issues for the First CWC Review Conference', in Jonathan B. Tucker (ed.): The Chemical Weapons Convention - Implementation Challenges and Solutions, Washington, D.C.: MIIS, April 2001, pp.59-65.
For a more detailed treatment of these issues see Alexander Kelle, 'Overview of the First Four Years', in: Jonathan B. Tucker (ed.), The Chemical Weapons Convention - Implementation Challenges and Solutions, Washington, D.C.: MIIS, April 2001, pp.9-15.
The details of the CW destruction process are spelled out in Part IV A of the Verification Annex to the CWC, specifying a number of intermediate deadlines CW possessors have to meet on the way to complete destruction of their CW stocks ten years after the CWC's entry into force (2007). The intermediate deadlines are set out in para. 17 of Part IV (A) of the Verification Annex. According to para. 22 of Part IV (A), a request as submitted by the Russian Federation in late 1999 to extend the intermediate destruction deadline can be submitted to the Executive Council in case "a State Party believes that it will be unable to ensure the destruction of the percentage of category 1 chemical weapons required". Under the terms of the Annex, Russia was scheduled to have completed the destruction of 1% of its 44,000-ton stockpile by April 2000, but in the event had not started its destruction programme by that date. Although the Russian Federation declared at the time of 1999 submission that it would try to catch up with its destruction process by the next deadline, destruction of 20% of the stockpile by April 2002, this does not now seem achievable, and even the ten-year deadline for destroying the entire arsenal appears unrealistic. For a summary of the status of Russia's CW destruction programme, see Jonathan B. Tucker, 'Russia's New Plan For Chemical Weapons Destruction,' Arms Control Today, July/August 2001; for a summary of the status of Russia's CW destruction programme, see Jonathan B. Tucker, 'Russia's New Plan for Chemical Weapons Destruction', Arms Control Today, July/August 2001.
For a summary of the status of the United States' CW destruction programme, see Seth Brugger, 'US to Miss Chemical Weapons Convention Deadline,' Arms Control Today, November 2001.
At the Sixth Session of the CSP in May 2001, the budget shortfall amounted to 5.1 million Euro. No supplementary budget was agreed. Rather, the TS was authorised to utilise the working capital fund should it face another cash-flow problem later in the year, and further authorised to transfer, as an exceptional, one-time measure, interest accrued in two special accounts. In addition, states parties were called upon to make voluntary contributions. The 2000 budget deficit of 3.6 million Euro will now be offset by withholding the distribution of the cash surplus for 1999, which otherwise would have to be paid back to member states. These measures, however, have not definitively solved the OPCW's financial problems, but only defused the immediate danger posed to the Organisation's operationality. The structural problems remain unchanged, relating first and foremost to the modalities surrounding the reimbursement of verification cost under Articles IV and V of the Convention, with the adaptation of which the EC has been tasked. In light of the past performance of the Council, and its inability to reach consensus decisions, success in resolving the problem is hardly guaranteed.
Toxic chemicals and their precursors considered to pose a danger to the Convention's purposes are listed in the Annex on Chemicals, which divides such substances into three 'schedules'. It has to be noted, however, that these three schedules do not define a chemical weapon under the CWC. Rather, they are used for declarations and verification purposes in the context of inspections. Schedule 1 chemicals pose the highest risk to the CWC; many have been developed, produced, stockpiled, or used as chemical weapons in the past and they have little or no peaceful uses. Schedule 2 chemicals pose a significant risk to the convention either because they can be used themselves as chemical weapons or as a consequence of their role as precursors to schedule 1 or 2 chemicals. Schedule 2 chemicals are not produced commercially on a large-scale. Lastly, schedule 3 chemicals are produced commercially in large quantities but still pose a risk to the Convention because of their role as precursors to either schedule 1 or schedule 2 chemicals.
See the editorial "New Technologies and the Loophole in the Convention", in Chemical Weapons Convention Bulletin, Issue No.23, March 1994, pp.1f.; Malcolm R. Dando, Future Mental Incapacitant Chemicals: The Impact of Genomics, Paper Presented at the 15th Workshop of the Pugwash Study Group on the Implementation of the CBW Conventions, Oegstgeest, The Netherlands, June 23-24 2001.
See Mark Wheelis, Biotechnology and the Development of Novel Chemical Weapons Agents, Paper Presented at the 15th Workshop of the Pugwash Study Group on the Implementation of the CBW Conventions, Oegstgeest, The Netherlands, June 23-24 2001.
See Malcolm R. Dando, 'Benefits and Threats of Developments in Biotechnolgy and Genetic Engineering', in SIPRI Yearbook 1999, Armaments, Disarmament and International Security, Oxford, 1999; M.R. Dando, 'Genomics, Bioregulators, Cell Receptors and Potential Biological Weapons', in Defense Analysis, Vol.17, No.3, 2001, pp.239-258..
See Pamela Mills, 'Progress in The Hague. 35th Quarterly Review', in The CBW Conventions Bulletin, Issue No.53, September 2001, pp.9-15.

Dr. Alexander Kelle is a Science Fellow at the Center for International Security and Cooperation at Stanford University. Previously he was research associate at the Peace Research Institute Frankfurt and the Institute for Comparative Politics and International Relations at Frankfurt University. This paper is based on a presentation given during Wilton Park Workshop 648, "Control Regimes for Chemical and Biological Materials: Towards a Safer and More Prosperous World", Wiston House, UK, 28-30 September 2001. It has benefitted considerably from the discussion having taken place. Any remaining errors, of course, are the sole responsibility of the author.