Interview with U.S. Ambassador Donald A. Mahley, Acting Deputy Assistant Secretary of State for Threat Reduction, Export Control

Interviewed by Oliver Meier

Representatives of states-parties to the 1993 Chemical Weapons Convention will gather April 7-18, 2008 in The Hague for the second review conference of the chemical weapons ban.  Participants will have to take stock of developments since the last review conference in 2003 and will discuss measures to adapt the treaty to current and future scientific and political developments.

On February 8, 2008, Arms Control Today International Correspondent Oliver Meier interviewed Acting Deputy Assistant Secretary of State for Threat Reduction, Export Controls, and Negotiations Donald A. Mahley about U.S. priorities for that meeting. Ambassador Mahley is the managing director of the United States National Authority, which is responsible for implementation of the Chemical Weapons Convention (CWC).

ACT: What are the key U.S. priorities for the forthcoming CWC review conference and what obstacles do you foresee to achieving those priorities?

Mahley: We’re still working on the details of what our specific objectives are for the review conference, but I think our priorities for the review conference are probably fairly straightforward. We want to make sure that the convention continues to work in as efficient and effective manner as it has up until now, that we avoid any kind of disputations or other kinds of things that are going to disrupt the conference, [and] that we maintain the idea that OPCW Director-General Rogelio Pfirter has done a lot of work to put in place a lean and mean organization. We are very pleased that we have been able to have for the last few years nominal zero-growth budgets. That’s been a great strain in terms of trying to get as much done as you can, but we certainly want to make sure that we don’t set in the review conference either a principle or a trend that we’re going to start expanding the budget of the OPCW by a great deal.

We’d also like to see if we can’t get some redirection in some of the efforts of the OPCW more into the idea of where the threat really occurs now and the unscheduled producers in some of the Third World countries. Quit trying to re-inspect so much all of the schedule 1 and schedule 2, particularly schedule 2 plants, in western countries where I think the size and the surveillance we’ve already done of those is a very clear indication that those aren’t a potential proliferation threat for chemical weapons.[1]

And I think that’s probably what our priority objectives are in terms of trying to get something out of this.

What do we see as potential obstacles to that? One, we think there are probably some states that have a different agenda with the review conference that is going to be both more accusatory and more disruptive. One of the things, for instance, is what do we think the review conference ought to do about 2012—the destruction deadline?[2] We don’t think that this is the time to try to address 2012. 2012 is there. We’ve all taken a look at the enormous technical obstacles in terms of destruction that are between here and 2012 and what I think this review conference ought to do is to set the groundwork for a work program to be able to find constructive ways to address the 2012 question before we get to 2012, but it’s too early to try to do something that will formally address that issue at this review conference. I think it’s going to be a potential dispute and obstacle.

It’s also the case that we continue to be against the idea of trying to turn the Chemical Weapons Convention and the OPCW into something other than a nonproliferation and arms control agreement, which is what it really is. If there are countries that are trying to push an agenda other than that then that will probably be an obstacle to the review conference.

ACT: Iran at the last two conferences of states-parties has proposed to establish a “chemical weapons victims international funding and assistance network”.[3] What’s your view on this proposal and do you expect the review conference to address it?

Mahley: I certainly expect the review conference to address it because it’s been placed on the agenda. I would argue that while we are certainly sympathetic to victims of chemical weapons, that the review conference and the OPCW are not specifically designed to, nor are they necessarily the place to, try to do something like setting up funds or disbursing funds or doing anything along that line with respect to victims. There are humanitarian agencies that exist in the world which can take that issue up. There are other ways to try to address the question rather than trying to turn that to being a function of a nonproliferation organization.

ACT: In 2005 the U.S. noncompliance report voiced concerns regarding compliance of China, Iran, Russia, and Sudan with regard to the CWC.[4] Does the United States still maintain that these states may be pursuing chemical weapons-related efforts or programs? Are there other countries you suspect of being interested in chemical weapons? Does the United States intend to name noncompliant CWC parties at the review conference?

Mahley: I cannot address the last question because I don’t think we’ve made a decision on that yet. That will be determined probably much closer to the review conference about whether or not we’re going to try to address countries on it. Again, it is our view that the CWC has been working reasonably well.

We continue to have concerns about the fact that countries in many ways are not complying with all the responsibilities under the convention, are not complying with the responsibilities towards the objectives of the convention, and are certainly not transparent in some of the things they are doing nationally. Those remain concerns for the United States. I wouldn’t want to try to go into a list of countries here, but let me say that we continue to uphold the same conclusions that we’ve reached and agreed on nationally in our noncompliance report. I think we’re still debating whether or not the review conference is a forum at which we wish to make that a major issue. Certainly, we are going to note it. For the United States to go to this review conference and not note that we still have real concerns about the compliance of some states with their international obligations as put in the review conference; we’re not going to ignore that. How we want to do that is something that I think we’re still debating.

ACT: If the United States still has concerns about compliance, why has the United States never requested a challenge inspection[5] to clarify such compliance concerns? Under what circumstances do you envisage that such an inspection could be requested by the United States?

Mahley: I think I can answer the second half of that question quicker than I can answer the first half of that question. The second half of that question is that we still believe the challenge inspection is a very important deterrent element of the CWC. Certainly at any time that the United States believed it had actionable evidence that would be susceptible to demonstration by a challenge inspection we would be in the forefront of calling [for] such an inspection.

Now, what you have to worry about, however, is when you look at the international reactions of other countries to other areas of concern that we have about compliance with international obligations and some of the ways in which the countries have not reacted to what was fairly compelling evidence, then we have a question about whether or not a challenge inspection is likely to create the kind of reaction on the part of some of those other countries that would be indicative of doing anything effective about the noncompliance situation that was at hand.

When we talk about the compliance concerns that we have, one of the things you have to be fairly careful about in calling a challenge inspection is that those compliance concerns are things that would be competently reflected in the results of a challenge inspection. If you have a concern that a country has a stockpile of weapons or agents that they shouldn’t have under the convention, then until you’ve got a location for that it doesn’t do you any good to simply call challenge inspections willie-nillie. If you call a challenge inspection for the wrong place, then the country, even though it may still have that stockpile, is going to claim that it has been exonerated by the international community and therefore you can’t list them as a concern anymore. That’s again not a path that we are going to follow.

ACT: You said it was too early for the review conference to address deadlines for chemical weapons stockpiles. Nevertheless, it seems likely that neither the United States nor Russia will be able to meet the 2012 deadline. The review conference somehow has to address this fact, particularly since it’s likely to be the last review conference before the 2012 deadline expires. Two options  have been mentioned, one  is amending the CWC, the other is invoking Article 8, paragraph 36 which gives the executive council of the OPCW the power to adapt relevant provisions.[6] Are these options that you think might be relevant for addressing the 2012 deadline?

Mahley: I don’t think that anybody has coherently looked at how best to address the 2012 deadline other than to wring their hands about the fact that they think it is an impending crisis looming on the horizon. That’s why I say that this review conference is too early to try to address that. I do not believe, frankly, that the appropriate groundwork has been laid to come up with a set of proposals or suggestions about how to effectively and rationally to address that.

I will put down one marker right now. The United States does not believe that an amendment conference for the Chemical Weapons Convention is either a suitable way to address that issue nor is it something that we would support. Amendment conferences get to be very tricky and take a chance of doing a couple of things that are very bad. [They] either undercut the regime that you have now or put in place a two-tiered regime depending on who’s ratified the amendment to the convention. We are simply not of the view that that would be an effective answer to any of the problems that we’ve currently seen listed.

I think the review conference ought to address the 2012 question in the fashion of setting down a work program and perhaps even establishing a working group to look specifically at the 2012 question as it gets nearer. I recognize that on the five-year schedule the next review conference would not occur until after 2012. But, number one, there is nothing in the convention that restricts review conferences to every five years. So there’s nothing that says you couldn’t call an extraordinary review conference, or any other conference of states-parties which has full vested power in terms of acting on the treaty. At some point before 2012 when you had for that conference an agenda for proposals, you could then rationally discuss how to address the 2012 question.[7]

The second thing is that I really want to make the point that 2012 is a date which was set in a time when the best minds looking at the best technologies thought was extraordinarily long in terms of destroying chemical weapons. What we have discovered since that was set in print and agreed to in 1992 is that destroying chemical weapons is a much more complicated event, particularly if you’re going to do it an ecologically safe and secure fashion. So, one of the questions you have to ask is whether or not those stockpiles that may remain after 2012 [are a threat.] Assuming that all of the possessor states that still have stockpiles in 2012 maintain their commitment, as they currently express it, toward the rapid and complete destruction of those chemicals in a verified and ecologically safe fashion. and if those stockpiles are identified, secured and under constant supervision for the OPCW, it’s not clear to me that that constitutes a particularly acute threat with respect to chemical weapons proliferation.

ACT: The purpose of such a work program or working group that you have proposed would be to set the parameters for dealing with a stockpile remaining after 2012?

Mahley: It could address a number of issues. It could address, first of all, the question about what is the compliance penalty. Given [the] statutory nature of the treaty, after the 28th of April 2012, the possession of chemical weapons is going to be [a] violation of your obligations. Now, that in some ways is a technical violation. I don’t want to get into a legal argument here. Assuming that [the chemical weapons] are all secured and that they are all under observation and rapidly moving their way toward destruction facilities, it’s not clear that that’s as bad as having an illicit program in terms of compliance. So, is there something that the states-parties ought to agree on in terms of what kind of a status that places those countries [in] that are still possessing chemical weapons under a destruction program as opposed to flat out noncompliance in the most rigorous sense of the word? Is there some recognizable program to which you could get a commitment from the possessor states that would give a very clear line about the rapid completion of the destruction program after 2012? Could [that] then become a supplemental commitment?

Now, I don’t know the answer to any of those questions. I don’t know what is legally feasible. I don’t know what is politically feasible, but that’s the kind of thing that I think that you ought to set up. Have a group to study very carefully—with probably a two- or three-year limit in terms of their study—to come back to the executive council and the regular conference of states-parties with proposals.

ACT: There have been statements by U.S. officials that the destruction of chemical weapons stockpiles will probably not be completed before 2023. Congress, in the context of the 2008 defense appropriations bill, requested the Department of Defense to complete destruction by 2017. Do you think that’s a realistic goal and what do you think it would take to make that 2017 deadline?

Mahley: I think that’s something that you would have to ask the Department of Defense who have the responsibility for it and are doing the technical studies to try to determine the feasibility of that deadline.

ACT: The United States has appropriated more than a billion dollars for chemical weapons destruction in Russia, primarily for the construction of the nerve agent destruction facility at Shchuch’ye. That project is only half finished and the administration wanted to turn over responsibility for the second half of construction to Russia. What do you believe are the main reasons for the delays in Russia’s chemical weapons destruction? To what extent do you think Russia still needs international financial support to fulfill its treaty commitments? What can the review conference do in this context to address Russia’s delays in chemical weapons destruction?

Mahley: To go to the last question about Russia’s delays, I think that one of the things [the] review conference can do is to make [it] unequivocally clear to the Russian Federation that they are going to continue to be held to the same standards as everyone else in the world in terms of the destruction of their chemical weapons and that they must continue to view and operate on that as a real priority in terms of the Russian government’s actions.

Now, what do I think are the reasons for the delays? Without knowing all the details of Russian destruction and Russian management, I suspect that they have run into some of the same kinds of difficulties that the United States has run into. In the sense that these are technically complex machines and systems that have to do the destruction of chemical weapons, you can’t always just build [them the] first time out and just put them down on the ground and [think that] they’re going to run forever without requiring maintenance and shutdown and various things. Those are always the kinds of delays that get involved with it.

I also think that in the Russian case, for a number of years, destruction of chemical weapons simply was not a priority for the Russian government. While recently it appears that they have indeed made chemical weapons destruction a priority requirement and have been moving out smartly in terms of trying to get some real work done on it, they nonetheless have a much later start than the United States had. They are in some respects playing catch-up.

ACT: What steps should be taken by the review conference to convince more hold-out states to join the CWC and what is the United States specifically doing to persuade allies such as Israel, Egypt, and Iraq to accede?[8]

Mahley: Iraq is I think a fairly straightforward case. Iraq has pledged to accede and that’s simply a matter of getting the various documentation and other requirements done so that they can effectively accede to the convention. I would expect that to happen in the not too distant future.

With other allies we continue to place that on the agenda when we have nonproliferation discussions with those countries. [We] try to convince them that in reality having a chemical weapons capability is not a particularly effective instrument of national policy. It doesn’t necessarily act as a deterrent to other action because there is increasing doubt in the mind of the world about whether or not you would ever employ it. Therefore by joining the CWC they are not, in reality, going to be forfeiting any national security objectives and national security options.

Now, making that argument in a region [that] is as complex and interconnected as the Middle East obviously is not always particularly persuasive or effective, but the United States continues to push that point.

The OPCW has done a number of things in terms of laying out in seminars to various countries that are not now members all the ways in which the OPCW operates, all of the procedures that they follow, all of the qualifications that they have in terms of executing their job, a full description of what their job is. That’s about all you can do to try to convince these folks that there is an effective and competent organization that they would be joining. The rest of it then becomes a matter of political will. How you create that political will, I don’t have any great secrets for. If I did, I’d probably be making more money than as a United States government employee.

ACT: Do you think that today OPCW inspectors would be able to detect a clandestine chemical weapons program run by a state-party?

Mahley: I think I’d have to ask that that question be clarified. Do I think that the OPCW inspectors would be able to detect a clandestine program run by a state-party? If by that you mean, are they going to go out and find the intelligence information that says that we believe there is a clandestine program in that party, no, because that’s not their job. Their job is to go conduct inspections.

Do I believe that they are capable of detecting a clandestine program if one were being conducted, for example, at a facility that they were inspecting on a routine inspection because it’s a dual-capable facility? I think there’s a very good chance of that.

Would they be able to detect a clandestine program were there one present if this were the result of the challenge inspection? I think that’s a variable answer. It’s a variable answer that’s not a question of the competence of the OPCW.  It’s a question of the entire issue of how one in a confrontational, as opposed to cooperative, fashion might be able to conceal from any set of inspectors the presence of a clandestine program. Certainly there is a chance that one could do that, even under a challenge inspection. In that case, I don’t think the OPCW inspectors would be at any greater advantage or disadvantage than any other team of inspectors.

ACT: At last year’s conference of states-parties Paula de Sutter said “We have to make sound recommendations that will ensure that verification keeps pace with changes in both the industry and the chemical weapons threat.”[9] What measures specifically would the United States like to see adopted by the review conference to increase the likelihood of detecting prohibited chemical weapons-related activities?

Mahley: That’s not necessarily an issue of what are you going to be able to adopt. Do we want to make sure that OPCW inspectors continue to receive training even during the time that they’re inspectors so that they remain abreast of the kind of changes that take place in the chemical industry? Certainly we do. Certainly we encourage the OPCW to do this. Certainly we believe that the OPCW does this to the extent that they can. We want to keep that up and we certainly think that there need to be budgetary provisions to do it.

The executive council needs to remain aware as much as the OPCW technical staff needs to remain aware of the changing nature of the chemical weapons threat. By that we mean not only the technological changes that make it possible to produce chemical weapons in a much smaller and more covert environment than the traditional manufacture of thousands and tons [of weapons and material] at large plants with specialized equipment. The threat now involves not only rogue states, but the nonstate actor. [For the] nonstate actor the quantity, for example, of chemical agent that a terrorist group would need in order to have something to effectively fulfill its objectives is considerably less and potentially of lower quality than the chemical agent that a state would want as part of a program that was going to be an adjunct to their military forces.

ACT: Do you think the overly narrow focus of many states on the schedules of chemicals that cover only a fraction of toxic chemicals and precursors of potential chemical weapons concern has reduced the effectiveness of the CWC? How can this problem be addressed without actually amending the schedules?

Mahley: Remember that the schedules have nothing to do with what’s defined as a chemical weapon. Schedules are matters of defining what facilities are subject to verification inspections and certainly all of the chemicals that are on the schedule are and remain toxic chemicals and potential precursors to chemical weapons or chemical agents. And therefore, they should indeed remain subject to inspection.

It’s also the case that you have the discrete organic chemicals which are a larger group and which have some greater flexibility in them already. One of the reasons that the United States believes that we ought to be shifting focus to that group as part of the inspection program under the OPCW is that that provides you with the flexibility to get out into facilities that are capable [of producing], and in some cases have possession of, stockpiles of other chemicals that go off the schedules. Therefore [they] are part of the potential threat in the expanded realm of chemical agents.

ACT: Many nongovernmental organizations and some states-parties argue that scientific and technological developments makes it necessary that the review conference address the increased interest in so-called nonlethal chemical agents. How should the review conference address this topic and what action should be taken to ensure that the norm against the hostile use of chemical agents is not undermined by the development of novel incapacitating agents?[10]

Mahley: I’m not sure that this is a problem that the Chemical Weapons Convention is deaf, dumb, and blind about. Certainly the issue of incapacitants is different than the issue of riot control agents. Riot control agents, as an exception to the Chemical Weapons Convention, are very carefully defined. Most of the incapacitants, in terms of human effects that you talk about technology now developing, do not fall in the realm of riot control agents. They fall in the realm of nonlethals. Nonlethals are still in the Chemical Weapons Convention [considered] chemical weapons. The only exception is the law-enforcement exception. So it’s not clear to me that this is something in which you say “oh my, the convention needs to be changed.” I don’t think the convention needs to be changed at all.

If anything, in the review conference [there] needs to be a relatively brief discussion reminding people of what the convention itself says. [It] says that those kind of nonlethals are not legitimate chemicals to be had for military purposes.

ACT: Do you think there’s a necessity to talk about what military purposes means today because the context has changed to some degree? We have international police operations, if you like, where such agents may be used. That is a development that may not have been foreseen at the time when the convention was negotiated.

Mahley: I think that would be a discussion that is likely to [cause] the review conference [to] become less focused, rather than more.

ACT: Is the United States ready to discuss the issue of restricting trade in schedule 3 chemicals with non-states-parties and if the United States isn’t, why not?[11]

Mahley: Well, I don’t think I’m in a position to discuss that because I don’t think we’ve made up our minds yet.

ACT: Do you believe the OPCW’s ability to monitor trade and dual-use chemicals needs to be increased and how could this be achieved?

Mahley: The OPCW is not designed to be a trade monitoring organization. Trying to create a bureaucracy, which would then also create an enormously larger set of declarations that countries would have to do, is not necessarily in our view either an efficient or effective way to try to exercise that kind of control of trade. We think there are responsibilities that are very clearly laid out in the convention about trade and chemicals. Those responsibilities that are clearly laid out are a matter of national enforcement. We would therefore turn to national authorities to do the things that they need to do, which is a part of the convention responsibility, to implement the right legal framework to give them both the data set and the enforcement capability to go out and control that kind of trade as they see fit to fulfill their obligations.

ACT: The administration continues to highlight the importance of the Proliferation Security Initiative[12] in preventing the spread of weapons of mass destruction, but all publicly known cases of PSI interdictions relate to nuclear technology. Have there been any successful cases in which the PSI has sought to prevent the proliferation of chemical and biological weapons to your knowledge?

Mahley: No comment.

ACT: Regarding national implementation, what role is there for the CWC in reducing the threat from chemical weapons terrorism? How can this role be strengthened from your perspective?

Mahley: I think the Chemical Weapons Convention’s role in preventing [the] spread of chemical terrorism is embodied in the Chemical Weapons Convention obligation to each state-party that they do all the things necessary in terms of national implementation to prevent any person within their jurisdiction or control from developing, producing, stockpiling, and [breaking] all the other prohibitions [related to] chemical weapons. That means that each country that is a member of the Chemical Weapons Convention has not only an obligation under UN Security Council Resolution 1540[13], but also a requirement under the Chemical Weapons Convention, to have in place an effective legislative package and enforcement capability to prevent terrorists from being able to do chemical weapons things within their territory or jurisdiction of control. That’s the way in which you get at terrorism.

The problem with the convention and using the OPCW for terrorists directly, is (as I have said in other fora at other times) that no terrorist group, to the best of my knowledge and belief, has signed the CWC and assumed its obligations. So therefore, that’s not a question in which the OPCW is the appropriate enforcement mechanism. The OPCW is not an enforcement body at all, as a matter of fact. It’s not the case [that] the convention, acting as a convention, is going to take action against the terrorists. The sovereign countries in whose territory the terrorists are operating are going to take action against the terrorists.

ACT: Ambassador Eric Javits, the head of the United States delegation to last year’s conference of states-parties, suggested that CWC member states should prioritize national implementation assistance efforts on those 20 states-parties “that lack effective implementing measures, but have more activities relevant to the convention within their territories”.[14] Can you cite some examples of states that you believe to be particularly important in this regard and what kind of obstacles do you foresee for putting this proposal into practice?

Mahley: I’m not going to try to cite countries because I’m not going to get into a list of countries. I will simply say that the obstacles to that are getting national implementing legislation and effective enforcement in place in all the countries [that] I believe have a pretty thorough understanding of what their obligations are. Now, if there are those who don’t [understand their obligations], then the first priority has got to be education to try and educate them. [For] those that understand it and haven’t done so yet, it is really a question that they either lack the resources or they lack the training.

What we can do, and what the United States for example bilaterally has done with a fair amount of effectiveness in a number of countries, is we send out teams that sit down with people in their executive branch. [The teams] suggest to them ways in which they might formulate national laws if they don’t have national laws, talk to them about how they can convince their parliaments to enact those kind of laws, and then what kind of  organizational structures and training programs they need to set up in order to get enforcers that are competent to go out and enforce those laws once they’re on the books.

The second part is we have training programs. Once we have the organizational structure set up, we are prepared to send resources and actually conduct training programs to make the officials [who] are going to be enforcing the laws more effective in their understanding of what constitutes a chemical weapon and how that works.

Those are the kinds of things that we think we can ask other countries to join us in doing. Frankly, we’ve had some favorable response from countries in the European Union in those kind of outreach programs to try to set up those kind of assistance activities.

ACT: How can the 1540 committee help states live up to their CWC obligations? How can the committee be strengthened so that it can fulfill its mandate better?

Mahley: I’m not an expert on the 1540 committee, I want to emphasize, but I think that the way that can work is to simply point out that the chemical weapons arena is an integral part of what they, as the 1540 committee, are trying to get countries to do. Because they’ve got the UN umbrella over them, they have the ability to appeal to countries on a completely different plane—or to a completely different set of bureaucrats, at least—to offer assistance [to other countries] and to put some emphasis within their own juridical systems on trying to get these kinds of laws and regulations and enforcement mechanisms in place. In that sense, I see the 1540 committee as a complement to the efforts that the Chemical Weapons Convention takes on. The 1540 committee obviously has a much broader mandate in terms of all the weapons of mass destruction and terrorism, as opposed to just chemical weapons.

ACT: If you look ahead to the review conference what would be the three specific recommendations coming out of that meeting that you would like to see  to strengthen the CWC?

Mahley:I really don’t have that down to a focus yet where I’m prepared to say which ones we want and which ones we don’t want out of that. So, I’m going to have to pass on that one.

ACT: Thank you very much.