CWC Review Conference Avoids Difficult Issues
The second review conference for the 1993 Chemical Weapons Convention (CWC) only barely avoided failure. The meeting, which took place April 7-18 in The Hague, had to be suspended at midnight of the last day, and diplomats worked until the early morning of April 19 to reach agreement.
Nonetheless, most participants gave a positive assessment of the meeting's outcome. Rogelio Pfirter, director-general of the CWC's implementing body, the Organization for the Prohibition of Chemical Weapons (OPCW), described the final document to Arms Control Today April 22 as "fully satisfactory." A U.S. official interviewed by Arms Control Today April 27 said that Washington assesses the outcome of the review conference as "overall positive" and a "modest success." He said that "based on the language in the final report and the behavior of delegations, there can be no doubt that states-parties remain committed to the treaty."
Several diplomats contacted by Arms Control Today agreed that, given the procedural difficulties, finding consensus on the final document was a success in itself but conceded that agreement was only possible at the price of avoiding contentious issues and copying large sections from the final document of the first CWC review conference in 2003.
An open-ended working group, chaired by British Ambassador Lyn Parker, had been preparing a draft final document since July 2006. Those consultations had not resolved many of the key issues, a job that was left to the review conference. A senior Indian official told Arms Control Today April 22 that "the problems related to reaching a consensus [at the review conference] were partly due to the postponement of give-and-take on more difficult issues, such as the balance between the obligations on disarmament and nonproliferation, destruction and verification, national implementation and international cooperation, and references to resolutions/activities outside [the] CWC such as [UN Security Council] resolutions [in] the last few days."
The draft text submitted by Parker to the meeting left some key developing countries feeling unhappy and believing that Parker had not adequately taken their views into account. Thus, negotiations were further complicated when the countries of the Nonaligned Movement (NAM), which come mostly from the developing world, introduced their version of the text, which proposed changes to almost all paragraphs contained in Parker's draft.
As it became clear that word-by-word negotiation of the final declaration in the Committee of the Whole, chaired by Algerian Ambassador Benchaâ Dani, would likely not lead to a consensus document by the end of the two-week meeting, a smaller group of about 20 states-parties began on the penultimate day to work out the draft of an agreement. The exclusiveness of this process led to considerable frustration among many of the 114 delegations participating in the meeting, particularly smaller countries that were not part of "the other meeting," as the select group quickly became to be known. Not only were these proceedings closed to outsiders, but the small group also rewrote language that had previously been discussed among all participants. The results of consultations in "the other group" were presented to the plenary meeting at 4 a.m. on Saturday morning, and most delegations only had an hour to work through the 149 paragraphs of the final declaration, which was adopted by 6 a.m Some diplomats contacted by Arms Control Today voiced concern that the resentments caused by the marginalization of several smaller states-parties during this process could negatively affect the future operation of the convention. The U.S. official called it "unfortunate that not more information was provided and not more delegations were involved" in the deliberations, but argued that "inevitably you have to have a group like that in multilateral meetings" to prepare a final outcome.
No Pressure on Destruction
The procedural difficulties encountered were all the more surprising as the review conference, chaired by Ambassador Waleed El Khereiji of Saudi Arabia, had gotten off to a smooth start. The feared confrontation between Iran and the United States did not take place. U.S. Ambassador Eric Javits in his statement to the conference April 7 did not accuse specific countries of violating the CWC, a step that had caused diplomatic ruptures at previous meetings. Iran's opening statement delivered by Ambassador Bozorgmehr Ziaran on April 8 was considered by many participants as less confrontational than past speeches.
To be sure, Tehran and Washington did clash over the likely failure by Russia and the United States to meet a treaty deadline to destroy all of their chemical weapons. The two countries are the largest possessor states and so far have destroyed 27 percent and 54 percent, respectively, of their stockpiles (see table 1). It is unlikely that they will be able to meet the extended treaty deadline of April 29, 2012.
Javits voiced understanding in his April 8 opening statement for "the concerns that have been expressed over the delays in achieving the destruction of existing stockpiles of chemical weapons," but argued that "the commitment of the United States to disarmament is clear, and the resources we have devoted to this complex, difficult task are enormous." Russia took a more assertive stance. Victor Kholstov, head of the Russian delegation, in his opening statement to the conference on April 8 stated that the "Russian Federation is taking all the necessary measures" to allow it to complete chemical weapons stockpile destruction "within the established timelines."
Iran called a possible violation of destruction deadlines "a clear and serious case of noncompliance." Yet, Iran was the only delegation to call into question the determination of possessor states to completely eliminate chemical weapons stockpiles by stating that failure to meet the deadline would "raise the concern that domestic policies have resulted in preferences for retaining certain stockpiles as ‘security reserves.'"
In the end, states-parties reaffirmed the importance of meeting destruction deadlines, noted the progress made by the possessor states, and expressed their "concern that more than 60 percent of stockpiles still remained to be destroyed."
The U.S. official described this compromise found on chemical weapons destruction as "fair and balanced." Pfirter told Arms Control Today that the final document "recognizes that, at some stage hopefully and according to the convention, all stockpiles will be destroyed, certainly the stockpiles of member states that have been declared but also stockpiles of states that are still not members of the convention," hinting at the possibility that some states that might join in the future might have to declare possessing such weapons.
The Bahamas, Dominican Republic, Guinea-Bissau, Israel, and Myanmar have signed but not yet ratified the CWC. Angola, Egypt, Iraq, Lebanon, North Korea, Somalia, and Syria have not signed the convention.
Pfirter and several delegations had suggested holding a special meeting of states-parties closer to 2012 to discuss the potential failure to meet destruction deadlines. Some participants in private conversations dismissed the lack of such a specific recommendation in the final document as irrelevant. Likewise, the U.S. official argued that the absence of an agreement in the final document "will have relatively little impact" because a decision on convening a special meeting of states-parties "will depend on assessment of states-parties in 2010 or 2011." Others believe that it might now be more difficult to convene such a meeting ahead of the third review conference, scheduled for 2013.
Nonproliferation or Disarmament?
Agreement at the review conference was complicated by a fundamental debate about the relationship between treaty obligations related to the destruction of existing stockpiles and those tied to the task of preventing the production of new chemical weapons.
This debate took place primarily between developing countries, which emphasized the role of the CWC as a disarmament treaty, and industrialized countries, which tend to highlight the nonproliferation aspects of the convention.
José A. Díaz Duque, Cuban deputy minister in the Ministry of Science, Technology and Environment who spoke for NAM and China, in his opening statement on April 8 emphasized "that with the amount of [chemical weapons] that is still to be destroyed, verification of destruction of the remaining chemical weapons stockpiles shall remain one of the major tasks of the Technical Secretariat."
Conspicuously, the NAM draft of the final declaration as well as a NAM working paper introduced during the first week of the meeting did not mention the term "nonproliferation." NAM diplomats denied that this was intended to signal a shift in interpretation of the convention. The Indian official explained that giving disarmament a priority until destruction is completed "does not mean that nonproliferation is less important. All the important pillars of the convention have to be upheld."
Western states, by contrast, emphasized nonproliferation and argued that the convention's industry verification system needs to be updated. "Today's risks and challenges are not necessarily the same as those that existed when the convention's negotiations were concluded in September 1992," said Anita Pipan, a senior official in the Slovenian Ministry of Foreign Affairs April 7 on behalf of the 27 European Union (EU) member states.
The United States, like many other Western states, argued particularly that the monitoring of "other chemical production facilities" (OCPFs) needed to be altered "both by increasing the percentage of facilities that are inspected annually and by improving identification of the specific facilities that should be inspected," as Javits stated.
The CWC verification system is based on three schedules, or lists of toxic chemicals and their precursors that have been developed and manufactured in the past for military purposes. The OCPFs fall outside those schedules and are inspected on a random basis. About 10 to 15 percent of these facilities are perceived as especially susceptible to manufacturing chemical weapons because they apply flexible production technologies that could be easily converted for the production of chemical weapons agents. (See ACT, January/February 2007.)
By contrast, developing countries were concerned that industrialized countries want to reallocate inspections toward facilities in their countries. The NAM statement therefore demanded that the OPCW's verification regime must "correspond to the hierarchy of risks inherent to the respective category of chemicals. Any shift in the distribution of inspections which is contrary to this hierarchy would signal a departure from the fundamental principles of the verification regime based on the convention."
There is a continuing shift in the global distribution of chemical production facilities from the traditional producers in Organization for Economic Cooperation and Development countries to developing countries, particularly in Asia. New producers are often relying on modern plants such as the OCPFs, which so far have received only 11 percent of OPCW inspections because nonproliferation monitoring is concentrated on those plants that use or produce chemicals listed in three schedules contained in the CWC.
Schedule 1 consists of chemical warfare agents and precursors that have no significant commercial applications, although they may be synthesized in small quantities for scientific research, pharmaceutical development, or chemical defense. Schedule 2 lists toxic chemicals and precursors that have commercial applications in small quantities. Schedule 3 contains toxic chemicals and precursors that have commercial applications in large quantities. The primary focus of routine inspections of the chemical industry under the CWC is on declared production facilities that manufacture the dual-use chemicals listed on Schedules 2 or 3.
The debate on the relative importance of nonproliferation also is part of an emerging discussion over OPCW spending. To date, the OPCW has spent 85 percent of all verification resources on monitoring the destruction of chemical weapons stockpiles. As destruction nears completion, the question will be whether those resources should be redirected toward verifying that chemical weapons are not produced at industrial facilities; funding other efforts, such as technical assistance; or scaled down altogether.
The Indian official argued that "technical cooperation on peaceful uses will become even more important as we approach 2012, and it is an important incentive for nonparties to join the convention."
By contrast, the EU argued "that the Second Review Conference should provide strategic guidance for addressing the current and future challenges to the Convention, bearing in mind that, following the completion of the destruction of all chemical weapons, the OPCW needs to be well prepared to focus on the next phase of the implementation of the convention, in particular its nonproliferation role."
The review conference did not provide that kind of guidance and specifically did not agree on any new mechanism for the allocation of verification resources. Instead, it charged the OPCW's Technical Secretariat with evaluating the effect of revisions to the site selection methodology that have already been implemented and to continue working on the problem.
The Indian official claimed this as a victory for the NAM countries. "The CWC verification regime is based on a hierarchy of risks. This has been upheld by the review conference even though the Technical Secretariat and the states-parties would keep this under review," he told Arms Control Today. But in private conversations, Western diplomats also expressed satisfaction with the result, pointing out that the final document does not preclude an adjustment of verification mechanisms and does not contain the "hierarchy of risks" wording championed by NAM countries. The U.S. official conceded, however, that Washington was "a little disappointed" by the lack of guidance provided by the meeting on how to improve monitoring of the OCPFs.
Pfirter is also satisfied with the outcome of discussions. He referred to the fact that the final document explicitly mentions nonproliferation and pointed out that it "quite clearly gives a mandate to keep on considering this issue, which is what I was trying to promote."
The Hidden Debate About Incapacitants
The review conference failed to agree on specific language on how the convention should treat the development of new types of incapacitating chemical agents. The convention allows the use of toxic chemicals for "law enforcement, including domestic riot control purposes." Yet, several delegations, including the 27 EU member states, Switzerland, and Pakistan in their opening statements, called for a debate on which types of incapacitating agents are prohibited and on the circumstances when the use of such agents might be legal.
A Swiss working paper, introduced by Bern to "launch a discussion of the ambiguities of the Chemical Weapons Convention regarding riot control agents, and the lack of provisions pertaining to incapacitating agents," was an important point of reference. Switzerland proposed that the review conference adopt "a mandate for a discussion of inter alia an agreed definition of incapacitating agents, the status of incapacitating agents under the Convention, and possible transparency measures for incapacitating agents."
Iran in its statement had deplored "the recent use" of nonlethal agents as a method of warfare. Such use of riot control agents is prohibited by the convention. Asked about what specific case Iran was referring to, the Iranian diplomat contacted by Arms Control Today refused to elaborate but remarked pointedly, "If people were discussing this statement against the background of the U.S. attacks on Fallujah, our statement has fulfilled its purpose."
In 2004 and 2005, the United States was accused of violating the CWC by using white phosphorus, an incendiary weapon, in counterinsurgency operations in Iraq, such as in the city of Fallujah. The United States has admitted to having used phosphorous shells but maintains that they were used legally and only fired into the air to illuminate enemy positions at night, not at enemy fighters. The U.S. official rejected the connection between riot control agents and the incidents at Fallujah. "I don't understand it," he told Arms Control Today.
Several diplomatic sources told Arms Control Today that the draft final document contained a reference to incapacitants but that Iran objected to this language at the last minute. The Iranian diplomat explained the rationale behind the Iranian veto in the following way: "Iran was in favor of having a strong statement on the problem of incapacitants and riot control agents. We wanted a clear reference to incapacitating agents and not simply to ‘new developments in the field of toxic chemicals,' as had been proposed by Switzerland, the United Kingdom, and the United States. We objected to that proposed language because it was too weak from our perspective and because the subject of the new proposal was different from what we expected." The diplomat said Iran was concerned that the proposed language could be read to curtail the right of peaceful uses of chemicals, granted under Article VI of the CWC. "The thrust of our idea was focusing on the incapacitating agents that fall under the purview of the definition of chemical weapons, not Article VI," he explained.
Other diplomats contacted by Arms Control Today regretted that the language had been deleted, arguing that even weak language may have provided a hook for future debates on the issues and pointing to the fact that the United States was apparently ready to support such language even though it had previously objected to any reference about concerns about incapacitants. The U.S. official also rejected the Iranian reasoning. "It doesn't make an awful lot of sense to me," he said and remarked that "there were a number of occasions when Iran was objecting to language that otherwise was not objected to by other delegations."
A different Western source told Arms Control Today April 28 that it was difficult to understand Iranian logic. "In objecting to the text that was available, they threw the baby out with the bath water," the source said. "Of course the language could have been stronger as several delegations would have preferred, but that simply was not going to happen given U.S. and French positions."
The U.S. official said that Washington was "concerned about the confusion between riot control agents and incapacitants," arguing that the use of riot control agents is not categorically prohibited under the treaty. "From our position, incapacitants are covered by the general purpose criterion," he said, referring to the fact that the treaty includes language making clear that the basic prohibitions of the CWC apply to all toxic chemicals and precursors that are acquired or used for hostile purposes, not only those listed in the three schedules. "We have no programs to develop incapacitants and got rid of our stockpiles," the official explained.
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