Chemical Weapons Convention: Challenges Ahead

-Rajiv Nayan, Research Officer, IDSA

 

History, constructed on concrete facts and mythology, records the use of chemical weapons on a number of occasions. It however, does not miss to capture the efforts made to stem such a use. The present century, in many ways, witnessed a flurry of activities revolving around chemical weapons. The comprehensive and voluminous application of this category of weapons in World War I led to much hue and cry. It resulted in the conclusion of the Geneva Protocol. Similarly, the American use of chemical weapons in the Indo-Chinese struggle pressurized the world to take a few more steps to address the menace of this class of weapons. Nevertheless, world public opinion kept struggling against the obstinacy and resistance of the US till the Gulf War. It was only when Saddam Hussein's Iraq made the US realize the threat of chemical weapons proliferation in a more direct way, that the American decision makers began serious moves towards arriving at an international agreement to ban the use, production, and possession of chemical weapons. Needless to mention, the US Administration was convinced that the American nuclear weapon possession would not allow an adverse impact on its strategic superiority, even after the renunciation of the chemical option. The removal of the American hindrance paved the way for the successful culmination of chemical disarmament. The windup of negotiations came about with the draft text of the Chemical Weapons Convention (CWC) on September 3, 1992 in Geneva. It was, subsequently, unanimously endorsed by the UN General Assembly in November 1992. It was opened for signature on January 13, 1993 in Paris. It was then expected that the required ratification to make the Convention functional would be deposited on the scheduled time. But this did not happen. The Convention could enter into force only on April 29, 1997. The US, China and several other countries deposited their instruments of ratification just a few days before the entry into force of the Convention.

The CWC is commended for its some noteworthy features. Akin to the Biological and Toxin Weapons Convention (BTWC) of 1972, the Convention recommends elimination of an entire class of weapons. Under any and all circumstances, the use of chemical weapons and any military preparations to use chemical weapons have been banned. Because of its widespread prohibition on all use, production, acquisition, retention and transfer, it is hailed as a comprehensive treaty. The CWC is also seen as the first multilaterally negotiated document with a universal application. Its broad definition is viewed as enabling the elimination of past, present and possible future chemical weapons. Its division of chemical agents into three schedules is also believed to have helped in properly attending to chemical warfare agents. As Schedule 1 chemicals do not have much civilian uses (except that one of the agents is used for chemotherapy for cancer patients), they are to be given a different treatment from the Schedule 2 chemicals that can be put to slightly more civilian uses and Schedule 3 includes dual-use chemicals. Of all the important features of the Convention, the most important is its verification network. Two types of verification--challenge and routine—are assumed to give a proper balance to the Convention against any case of non-compliance. Related to it is the mechanism of sanctions and incentives like protection against possible chemical attacks and permission of transactions of chemicals without any hindrance among member states. With the entry into force of the Convention, all organs of Organization for the Prohibition of Chemical Weapons (OPCW) have become active. Numerous issues which were vital for the implementation of the Convention but remained unresolved were settled. Yet certain issues and developments that can affect the health of the Convention persist . The present paper charts out important concerns for the CWC.

Challenges

A large number of countries have not filed their declarations. By October 1997, only 68 states party to the Convention had deposited their initial declarations and many of these are incomplete1. Shockingly, even the US has provided incomplete details, ostensibly because the Congress has not passed the implementing legislation whereby the US industry is asked to furnish information on the production, consumption, import, and export of chemicals controlled by the Convention. Other countries cite other reasons. Although this matter has already been discussed in the Executive Council, it needs to be taken more seriously and assertively. Otherwise it will have negative implications for the implementation of the Convention.

The US, along with nine other countries, had not paid its dues to the OPCW by the end of August 1997. The default of the US, which contributes more than 25 per cent of the total, is really a matter of concern. The Director-General of the OPCW stated that the non-payment of tens of billions of dollars by these countries created a serious financial problem2. In 1997, just 87 per cent of the total collection could be made.3 Partial payments are not going to solve the issue either. The OPCW planned to suspend inspection and staff-hiring work in September 1997. Naturally the work of implementation will be seriously hampered in such a situation. The Director-General feared that time-frames of the CWC could not be followed. If the present trend continues several violations of the CWC will go undetected, since the OPCW will have to set priority areas to manage its affairs within limited resources. Alarmingly, low priority can be assigned to a high-resource involvement mission. However, the Director-General of the OPCW was optimistic about the realization of the contribution money in the future . In any case he will have to ensure that, at least, there should not be any problem on the administrative front.

Finance in another manifestation is creating problems for some countries like Russia. Because of the provision of the CWC, each chemical weapon possessor country has to bear the cost of destruction of its weaponry. Russia, one of the declared chemical weapon possessors is facing acute financial crisis and this was one of the reasons of its delay in ratifying the Convention. Also, owing to the shortage of funds, it is finding it extremely difficult to comply with some obligations of other arms control and disarmament treaties that it has signed.

As Duma has ratified the Convention, it has to spell out the programme of weapons destruction and accordingly, it has to begin the work towards the elimination of the stockpile within ten years. Of course it can get an extension for a limited period, if there is genuine ground for seeking time. By all estimates, it does not appear that the Russian government can mobilize enough resources to undertake the task of destruction. However in May 1997, the European Union promised approximately $9 to $13 million.4 Individually, Germany and a few European countries have also given some additional amount.5

The US granted $135 million under the Cooperative Threat Reduction Programme.6 On the other hand, the Duma earmarked only 145 billion Rubles for chemical weapons destruction in 1996 7. This was just one per cent of the total demand made by President Boris Yeltsin. Ultimately, merely 8 million Ruble could be collected for the federal destruction programme. It is assessed that with this amount the Russian Army can somehow "maintain stockpiles and try to prevent breakdowns and accidents, but it is clearly insufficient for Russia to mount a meaningful destruction program."8 Complete destruction according to Russian officials will consume over $5 million.

An additional effort to mobilize resources, in all likelihood would be seen as a big burden on the ailing economy. This might result in opposition to the Convention from various domestic quarters of the country. The situation can force the government to abandon the Convention. The international community in general, and the OPCW in particular, shall have to pay attention to this peculiar Russian situation so that the largest possessor of chemical weapons remains involved with the activities of chemical disarmament.

In addition to inadequency of funds, there will be the challenge of locating an appropriate technology for destruction. The US for the destruction of its limited chemical weapons, has used the incineration method. But it witnessed protests while destroying the small stockpile in facility of Johnston Island in the Pacific. The protest from local opposition was restricted to the bases on the mainland, notably at Edgewood in Maryland and at the Blue Grass Arsenal near Lexington, Kentucky. A study of alternative technologies has been undertaken by different organizations and agencies of the US to address all the concerns of destruction.

Nevertheless the final decision on the selection of alternative technology is awaited. The US, with abundant resources, should be urged to take up the issue more seriously. The American development of the suitable destruction technology will, definitely, be used by other countries. With delay, the belief that laxity has crept into the destruction scheme may be perceived.

The OPCW has also to intercept a few more chemical agents which have not been listed in the three schedules of the CWC. The CWC member countries are supposed to keep track of the listed chemicals. Eleven such additional dual-use chemicals are being controlled by the Australia Group, but there are some lethal agents which have not been included in either of the bodies. Likewise, there is all possibility of the development of lethal chemicals in the future,as there is no bar under the Convention to undertake research activities. Considering the scientific-industrial base of the developed countries, it is expected that most of the chemicals will be developed in these countries.

Here, the OPCW will have great difficulty in procuring technology to detect and verify potential and possible violation of the Convention. It will be difficult because mainly the same set of countries, which are developing or will develop these chemicals, are supposed to provide detection technology. And countries, well-versed in the art of realpolitik, will always resist something that can affect their positions adversely, no matter if it amounts to a breach of faith.

This breach of faith is evidenced in certain other activities pursued by these countries since the conclusion of the Convention. The Convention does not allow reservations on its main text. The conditionalities imposed by the US Senate while ratifying the Convention are surely of quasi-reservation nature. It can have wider ramifications. The governments of several countries, who have become parties to the Convention in haste or without holding a proper internal debate may be put under pressure to follow the American example. There may be stress for introspection of the decision through a fresh debate on the issue. Even if a proper debate is not carried forth, other countries may make the conditionalities as a yardstick to examine their stands vis-a-vis the CWC. The countries will interpret these conditionalities according to their convenience and situation. Without an iota of doubt, the CWC would suffer in this entire episode. This is going to promote the culture of suspicion.

There is yet another American provocation.Before the American Senate ratified the Convention, the American society had debated security implications of the Convention at great length. Opponents of the Convention cautioned that the CWC would adversely affect American security. Reports of different Western agencies had been quoted to substantiate this by pointing towards some holdout states that have chemical weapons or at least, the potential to produce such weapons. Interestingly,a section of the American strategic community has continually been raising the issue of these holdout states. This section projects these countries as security threats and puts pressure on the Administration to reconsider its decision of staying in the Convention. A gloomy picture is painted that soldiers of the member-countries will be deprived of a level playing field.

Basically to appease this section, different top-ranking US officials have been making statements that nuclear weapons will be used against countries that use chemical weapons against US troops. Before the ratification by the Senate an assurance came from US President Bill Clinton that nuclear option would be applied if chemical option is used against the country9. The same stance was repeated quite recently 10. The American position will further strengthen the practical and moral stand taken by the holdout states. They will reiterate their point for the conclusion of nuclear weapons disarmament as one of the pre-conditions of their joining the Convention.

It has also accentuated the general perception that the US never surrenders a weapon that can deprive it from strategic superiority. The new US doctrine might put several other countries under domestic pressure to review their stand on the CWC in relation to security. It can be argued by certain countries which are reluctant to develop relatively costly nuclear weapons that chemical weapons involving low cost and technology will give them a decisive edge over conventional weapons. And the logic would be that if the US cannot surrender its strategic superiority, other countries are also free to take care of its security by preserving whatever strength it has . This can lead to a step towards opting out of the Convention.

This would undermine the promise made in the Preamble of the Convention of working towards general disarmament. The CWC was considered a step toward general disarmament. Naturally, nuclear disarmament will be the most desirable component of it. Owing to this goal, several countries went along with the Convention. The American nuclear posture is going to send a wrong signal. It will appear that an important country like the US is not respectful of the basic spirit behind the CWC. The ensuing disillusionment may jeopardize the Convention.

The US-led CWC botching business is also being done through an instrument like the Australia Group. Since its very inception, it has been disfavoured by developing countries. Throughout the period of negotiations the Australia Group had been emerging as a bone of contention between the developed countries and developing ones. Developing countries demanded abolition of the Australia Group. The move was successfully resisted by the founding members as also by the expanded or co-opted members. In the concluding session, the Group of 21 submitted a document asking to end the Australia Group. It was argued that the operation of the CWC would accomplish the mission of the Australia Group; so there was no logic of continuing a parallel and controversial regime like the Australia Group. Again, the developed countries did not pay heed to the demand and advice of the developing countries.

It is quite necessary to remember the 1992 UN Report of the Conference on Disarmament that states, "In connection with Article XI attention is drawn to the CD plenary statement by the Australian representative on August 6, 1992, in which he stated: 'They (members of the "Australia Group") undertake to review, in the light of the implementation of the Convention, the measures that they take to prevent the spread of chemical substances and equipment for purposes contrary to the objectives of the Convention, with the aim of removing such measures for the benefit of states to the Convention acting in full compliance with their obligations under the Convention."17

Now some Western commentators are misinterpreting the pledge made in the concluding session of the CWC negotiations by asserting that "Nowhere in the CWC's text is there a requirement to eliminate the Australia Group."12 Some say, "In fact, the CWC does not require that the Australia Group controls, or US unilateral controls,be dismantled."13 Without doubt, there was no mention of the dismantling of the Australia Group in the text but it is fairly true that it pledged in the concluding session that the Australia Group would be wound up.

Some Western commentators sensed it as an 'interim measure' not 'a permanent fixture.' But what happened afterwards was just the opposite. The Australia Group countries did not fulfill their promise even after the elapse of more than five years of the conclusion of the CWC. Now they are putting a different set of arguments. They state that the Australia Group will play a complementary role to the CWC. According to them, there are several dual-use chemicals which have not been listed in the schedules of the CWC. It is maintained that the Australia Group, combined with the CWC, will raise the cost of chemical weapons option of a country. This will discourage a possible proliferant.

Further, the pro-Australia Group writers contend that "the CWC does not explicity control exports of equipment or technologies. Nor does it provide for ongoing research into the types of chemical agents actually sought by proliferants or the types of technology precursors or equipment proliferants actually use."14 Another logic is that the continued control on dual-use will enhance the parties' confidence that they are not inadvertantly contributing to proliferation. It is defended by averring that the countries can fulfill the obligation of the Convention of not helping in the development or production of these weapons with the regular flow of information about chemical weapons among the Australia Group members. Besides, they behold that sharing of information, obtained by the Australia Group, with the CWC signatories, will strengthen the CWC.

It is further defended by some that it is playing an active role in highlighting the proliferation problem, which in turn is leading to enactment of export control laws by several new countries. There is yet another astounding explanation: "...the Australia Group has taken steps to capitalize on the willingness of some developing countries to revise their security policies and practices by taking very public steps to dismantle programs to develop Weapons of Mass Destruction. Notable examples of this welcome phenomenon include South Africa's denuclearization, the repudiation of a simmering nuclear arms race between Argentina and Brazil, and the 1992 Mendoza agreement renouncing chemical and biological weapons in the Southern Cone."15 At best, this explanation can be called a good wild imagination. It is completely baseless, without evidence and ignorant of the real factors which had facilitated the above-mentioned phenomenon.

The Australia Group is portrayed as a shield for security of developing countries. It is stated that "since 1918, all incidents of chemical weapons use on the battlefield have taken place in developing countries."16 But it is ignored that they were used by industrialised developed countries (except in 1988). To contain proliferation, it is considered to provide "multiple tools, tenacity and assertive responses to states that defy international behavioural norms." 17The supporters of Australia Group also maintain that there is an exaggerated account of the group's commercial consequences whether seen in terms of trade flows or price structure. A study is quoted to prove the point.18 The study notes that chemical agents controlled by the Australia Group do not exceed one per cent of the total trade between the developed and developing countries. It shows nil impact on the Australia Group in terms of chemical transactions.

Whatever the arguments put forth by the supporters of this chemical regime, developing countries do not sight any reason behind the perpetuation of this group. Definitely, there is no wisdom in continuing the regime when the parties to the Convention have committed themselves against spread of chemical weapons. Already as parties to the Convention they are not going to use or develop chemical weapon. The history of all export control regimes, including the Australia Group reveals that hegemonic, closed, discriminatory and irrational character of these regimes has failed in stemming the flow of prohibited items and technology. Even Western and American writers are admitting this stark reality.

These regimes have only been successful in troubling and putting obstacles before democratic countries, like India, pursuing an open and transparent policy on transfers. Several countries with dubious track records have been getting away unpunished due to the clandestine transfers of the prohibited technology. More interestingly, in the entire process, the biggest help has come through politics of the developed countries. The export control regimes have basically been serving foreign policy goals of the countries like the US. No doubt, the CWC has got a daunting task to meet this particular challenge of monitoring banned and restricted items. In this regard it will have to struggle with the attitude of the developed countries. Ignorance can also be shown, if the developed countries are getting some direct and indirect favours in return. Dynamics of world politics is going to pose further challenge.

Another astounding issue is the official position of the US government enshrined in one of the conditionalities attached to the ratification of the CWC. The conditionality in question "requires the President to certify that he has obtained authoritative assurances from all other Australia Group (AG) members that the CWC would not weaken AG export controls."19 This is understood as a breach of faith. It would not be unnatural, if there was a reaction against this from some countries.

The issue of transparency, hampered by the operation of an export control regime like the Australia Group, appears to have developed a snag because of certain provisions of the CWC. In pursuance of the fixtures of the Convention, countries parties to it have to declare their chemical stockpiles. The information provided by the member-states is safeguarded under the provision of confidentiality. At the same time, the Convention makes it clear that it will help in confidence-building measures. The Executive Council of the CWC has to pull off this balancing act. It has been suggested that broad information related to weaponry should be shared. This becomes relevant because many countries suspected of possessing chemical weapons have submitted data and the number of such countries has surprised even the Director-General of the OPCW, but there is no knowledge regarding their actual status. Moreover, the Director-General of the OPCW complains about high classification status of all declarations. Instead, he asks for a more targeted approach, so that the burden on the implementing machinery is eased.20 The diminished burden, for sure, will facilitate the Convention to pay attention to other challenges. The threat of chemical terrorism looming large over the international community requires an urgent focus.21 Although this threat was discussed quite often on previous occasions yet as a reality, it is a recent sensation. All countries are serious about it, for the simple reason that it is a danger emanating from the civil society and is targeted against the very same society. Other states might be involved, but only covertly. The main actor is a domestic non-state one. Various studies have uncovered that definite characteristics of chemical weapons such as toxicity in small dosage, indetectability due to the involvement of less complex infrastructure for production, transportation, ineffectiveness of conventional anti-terrorist sensor systems and so on, have appealed to terrorists to go in for this kind of weapons. It is remarked that in many cases favourable time-lag, adaptability to small demonstration attacks, capable of instilling fear in the targeted population, etc. also lure terrorists. Contamination and dispersal are considered to be the two preferred delivery options for terrorists. The studies find that terrorists are well capable of getting access to different chemical agents such as various insecticides, hydrogen cyanide or mustard gases, nerve agents like sarin, tabun or VX, CX or phosgene oxiome along with certain less toxic substances. It has been detected that terrorists procure these agents either through outright legal purchase or stealing or foreign assistance .However, it is true that most of the lethal chemicals are commercially within reach. An enhanced role of CWC needs to be recognized in this regard.

Acknowledging the importance of the CWC to counter chemical terrorism, the US President Bill Clinton once stated that "by tying the United States into a global verification network and strengthening our intelligence sharing with the international community, this treaty can be an early warning that is essential for combating terrorism."22 For this particular task, provisions contained in two articles of the Convention are directly relevant. Article VII. 1 (a) directs each state to "prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited to a State Party under this Convention."23 The violation of prohibition will lead to penal legislation. Also Article X promises assistance and protection against chemical weapons.

Besides, the OPCW has to grapple with the issue of old and abandoned weapons. As per Article II of the Convention, old chemical weapons are the weapons which were produced before 1925 or in the period between 1925 and 1946. It is considered that due to excess deterioration, these cannot be used as weapons. The abandoned chemical weapons are seen as weapons, "including old chemical weapons, abandoned by a state after January 1, 1925 on the territory of another state without the consent of the latter.24 Further, Article III, paragraph 2 of the Convention, exempts a state party from chemical weapons buried on its territory before January 1, 1977 and which remain in the same state. The same section also exempts chemical weapons dumped into sea before January 1, 1985.

Owing to such provisions, old dumping sites will continue to create a permanent environmental worry. The case of dumped chemical ammunition in the Baltic Sea has already generated much debate 25. States are refusing to take direct responsibility for chemical weapons lying at the bottom of the sea in international waters. These weapons had been dumped by the UK, the US and the former Soviet Union after World War II. These are German weapons and Germany is considered the legal successor. But since Germany did not dump these weapons, it is not willing to tackle the likely environmental responsibility created by these weapons. A single country bearing the entire financial burden of disposing off these weapons is also treated as an impractical idea. Moreover, the old, decaying and corroding weapons are also dangerous while handling.

Many more such sites and facilities have been reported and discussed.26 Some have been declared to the OPCW, other declarations are awaited. Still, there are numerous sites, which have not been mapped. The countries, that had undertaken chemical warfare programmes in the past, are liable to proceed with research activities to locate such sites. Furthermore, each located site has its unique complication. The accessible mechanism of destruction of this type of weapons has been inadequate. The OPCW has to confront all these problems in the coming days. It requires to coordinate all the activities to eliminate this weaponry by involving various national and international agencies.

Conclusion

Unquestionably, all the challenges, that are confronting the Convention are complex. Their complexity and hetrogenity is reflective of the nature of the existing international system, which is equally complex and diverse. As a whole , they are detrimental to the existence of the Convention. These challenges are products of desires, dilemmas, defiance, recalcitrance and constraints of various state and non-state actors. However, the complexity inherent in them demands an intricate strategy. Each case necessitates a specific framework within which the solution to the issue can be ascertained. Nevertheless it does not mean that the concerted international efforts could be abandoned. Rather such an effort is extremely critical for the difficulty that has a common complication.

Positively, the OPCW will be the nodal agency for devising ways and means to tackle the challenges. Although the Convention has already equipped itself with both mechanisms, persuasion and coercion, under normal circumstances, it could act more as a forum for consultation and cooperation among Parties States. Through cooperative consultations an answer to many a puzzle is easily found. The cooperative atmosphere will help in handling an unforeseen knotty situation in the future. In a diverse and unequal world, this approach will stimulate resourceful countries to marshal out their wherewithal for the wellbeing of the Convention.

Nonetheless, ungenuine defiance and obduracy should not be treated leniently. Warning should be given in the first instance. If the concerned party fails to consider the call, the Organization should not hesitate in taking a strong action against it . In this regard, it will have to be well prepared and non-discriminatory. The functioning of disparate international and global bodies has confirmed a clear cut prejudice in favour of the powerful countries. Their defiance is often ignored and at times, rationalized. In all cases, no action is taken against them.The present OPCW has to ensure that this tendency will be curbed in the case of defiance of the CWC provisions. As a matter of contingency, it should enforce the payment issue.

The CWC lays down, "A member of the organization which 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 preceding two full years. The Conference may, nevertheless, permit such a member to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the member."27 The message of it is crystal clear, a developed and prosperous country like the US should not be granted amnesty. Moreover, the international community expects the US to strengthen the CWC with its resources in general, and advanced scientific expertise in particular.

 

Notes

1. The Arms Control Reporter, idds , November 97, p. 704. B. 639

2. Jane's Defence Weekly, September 3, 1997.

3. The Arms Control Reporter, idds, 11-97. p 704, B. 639.

4. The CBW Chronicle, Volume II, Issue 3, October 1997, p. 2.

5. Ibid.

6. Ibid.

7. Ibid.

8. Ibid.

9. The Arms Control Reporter, idds 7-96, p 704 B 608.

10. The Hindustan Times (New Delhi), December 8, 1997.

11. United Nations, Report of the Conference on Disarmament, General Assembly, Forty Seventh Session, Supplement No 27 (A/47/27), New York, 1992, p. 63.

12. The Henry L Stimson Center, Separating Fact from Fiction: The Australia Group and the Chemical Weapons Convention, Occasional Paper No. 34 March 1997, p. vi.

13. Michael P. Walls, "Trade Implications of the Chemical Weapons Convention", Industry Insights, p. 3 quoted in Ibid, p. 29.

14. Jessica Eva Stern, "Co-operative Security and the CWC: A Comparison of the Chemical and Nuclear Weapons Non-proliferation Regimes", Contemporary Security Policy, vol. 25, No. 3, December 1994, p. 41.

15. n. 12, p. 24.

16. Ibid, p. 25.

17. Ibid, p. 32.

18. Brad Roberts, "Rethinking Export Controls on Dual-Use Materials and Technologies: From Trade Restraints to Trade Enablers," The Arena, no. 2 (June 1995), p. 2 quoted in Ibid, p. 25.

19. The Arms Control Reporter, idds 4-97, p. 704.B.626.

20. The Arms Control Reporter, idds 3-97, p. 704.B.632.

21. For a detailed discussion, see Ron Porver, Chemical and Biological Terrism: New threat to public safety?, Research Institute for the Study of Conflict and Terrorism, Conflict Studies 295, December 1996/January 1997.

22. The Times of India (New Delhi), September 8, 1996.

23. Conference on Disarmament, CD/CW/WP.400/ Rev.2, August 10, 1992, p. 23.

24. Ibid., pp. 9-10.

25. Axel W. Krohn, "The Challenge of Dumped Chemical Ammunition in the Baltic Sea," Security Dialogue, Vol. 25, No. 1, March 1994, pp. 93-103; Per Olof Granbom, "Dumped chemical ammunition in the Baltic", A Rejoinder, Security Dialogue, vol. 25 No. 1, March 1994, pp. 105-110.

26. For details see Thomas Stock and Karlheinz Lohs (ed), The Challenge of Old Chemical Weapons and Toxic Armament Wastes, SIPRI Chemical & Biological Warfare Studies 16, (Oxford University Press, 1997).

27. n. 23, p. 25.