The Future of the Chemical Weapons Convention

John D. Holum

The Chemical Weapons Convention (CWC), negotiated under Presidents Reagan and Bush, bans the production, acquisition, stockpiling and use of chemical weapons. The treaty will enter into force on April 29, 1997, 180 days after the 65th state (Hungary) deposited its instrument of ratification. As of January 31, 1997, 68 ratifications had been deposited and 161 countries had signed.

In November 1993, the same month President Bill Clinton transmitted the treaty for Senate advice and consent, John D. Holum was sworn in as director of the Arms Control and Disarmament Agency (ACDA). He has been helping since then to steer the CWC through treacherous congressional waters, where opponents have delayed consideration and sought to add "killer amendments" to the resolution of ratification that would make it impossible for the president to deposit the instruments of ratification necessary for U.S. accession to the treaty. After a scheduled vote on ratification of the treaty in the Senate was postponed in mid September 1996, the CWC is once again in the hands of the Senate Foreign Relations Committee.

Holum, who as ACDA director has the role of principal advisor to the president and the secretary of state on arms control matters, also advised Clinton on defense and foreign policy during the 1992 presidential campaign. He was also legislative director on the staff of Senator George McGovern and a prominent Washington Lawyer

On February 18, 1997, ACA President and Executive Director Spurgeon M. Keeny, Jr. and Special Assistant to the Director Erik J. Leklem interviewed Holum on the treaty's utility as an arms control tool and its chances of success in Congress. The following is an edited version of the interview.

Arms Control Today: The Chemical Weapons Convention (CWC) was signed in January of 1993. Why has ratification been delayed for over four years and what is the current state of play in the ratification process?

John Holum: The delay has a number of sources. The Clinton administration, when it came into office, obviously made its own independent assessment of the treaty which had been negotiated and signed during the Bush administration. It took a bit of time to determine whether to recommend it to the Senate. The decision was that the treaty was a net plus for security and that it should go forward. Preparation of the implementing legislation, which needed to go to the Hill in roughly the same time frame as the treaty, also took some time. The treaty was then submitted in November 1993.

Then the election in 1994 changed the complexion of the Senate. It is fair to say that for a substantial part of more than two years, the treaty has been held up by efforts to link it to unrelated issues, such as Senator [Jesse] Helms' [R NC] plan to reorganize the foreign affairs structure. Of course, our challenge is to make clear that the treaty is not a favor to President Clinton, but a security instrument for the American people, and linkage with other causes is, therefore, inappropriate.

ACT: Given the fact that chemical weapons have not really been used extensively anywhere since World War I, how important is the CWC from the point of view of U.S. security?

Holum: First, keep in mind that this treaty is not about our weapons. The United States is getting rid of its chemical weapons stockpile, regardless of what happens with the CWC. This treaty is about other countries' weapons, and whether to call on other countries to do the same thing we are doing.

In that context the CWC is very important. The likelihood of chemical weapons use by others is growing rather than shrinking; in part because of geopolitical change that has occurred since the end of the Cold War, and in part because the technology is more widely available.

There is a very real danger that U.S. citizens will be exposed to chemical weapons attacks by terrorists, as the people of Japan have been, and that U.S. troops will be exposed to chemical weapons as we feared they might be in the Gulf War. Roughly 20 countries around the world now have chemical weapons programs, and the threshold has been crossed between their use by the military and their use by terrorists as we saw in Tokyo. We've seen at the World Trade Center, in Oklahoma City and in Olympic Park that we're not immune to terrorism. So the CWC gives us important tools against real threats.

ACT: When and how was the decision made by the United States to eliminate its chemical weapons capability?

Holum: It was made in legislation in 1985 that we would basically get rid of our unitary chemical weapons stockpile, which is the vast majority of all our chemical weapons, and in 1991 we decided not to proceed with a binary weapons program. We have essentially been out of the chemical weapons business since then, and working on the technologies for getting rid of the stockpile. The destruction decision was made in part for security reasons, because our military did not want it, and in part because the aging weapons stockpile was beginning to become an environmental hazard. Thirty thousand tons of these materials sitting around the country at various sites began to leak and corrode, and it was decided that the United States would be better off without these weapons than to retain them in reserve.

ACT: Which countries have programs that are the greatest concern or potential concern to the United States?

Holum: Some of the principal ones are Iran, Iraq, Libya and North Korea. There are a number of others with active programs that we haven't talked about publicly in part because of the sensitivity of intelligence sources and methods. But those four certainly give you an idea of the character of countries that find chemical weapons appealing.

ACT: How, in general terms, does the CWC seek to implement a ban on the development, production, stockpiling and use of chemical weapons?

Holum: It backs up the basic prohibition through a system of declarations, routine inspections and the possibility of on site challenge inspections of suspect sites, government or private. The practical effect is best understood by example. Consider that we know the Libyans have been actively building the largest underground chemical weapons facility in the world, in the desert at Tarhunah. As things stand now, we can know about that through a variety of sources. We can wave our arms about it. We can protest it. But there is nothing we can do about it because it is legal for the Libyans to have that facility and stockpile chemical weapons. The 1925 Geneva Protocol generally only prohibits their use, not their production or possession.

With the Chemical Weapons Convention in force, two things could happen. Libya could either join the convention or remain outside of it. Assuming we ratify, I think over time that Libya would join. That certainly happened with the nuclear Non Proliferation Treaty [NPT], which now has 185 members, including many, like Iraq and North Korea, that have an interest in nuclear weapons. The gravitational pull, trade restrictions and the intense international attention would probably draw Libya into the CWC. If they did join, of course, we would have the option of calling for a challenge inspection at Tarhunah. If a chemical weapons program were found, sanctions could be imposed either among the CWC member countries collectively or through the UN Security Council.

The other possibility is that Libya would stay outside the treaty. Then Libya would be subject to trade restrictions. Libya would also be pressured by its neighbors. When we talk to the Egyptians now and say they should be concerned about the Libyan CW program, they shrug their shoulders and ask, "What can we do?" If the CWC was in force one of the things they could do is say to Libya, "Why don't you join the treaty? What do you have to hide?" So, you have either a stronger legal tool if the Libyans are in the treaty, or a stronger political tool if they're outside the treaty.

Now, contrast that with the current situation where you have nothing. I am always puzzled at the assertions by the opponents of the treaty that this is not a perfect instrument. Nobody says it is. Nobody is saying it will solve all the problems, or that all who join will scrupulously comply. But the alternative is to do nothing, to have no additional tools and to either just wring our hands about a CW program or unilaterally destroy it, which is unlikely to occur, with nothing in between. Of course implementation will be hard and complex. The world is full of dangerous neighborhoods. But does that mean we should just give up? Difficulty of enforcement of the CWC is no more an argument against it than the persistence of crime is a reason for abolishing criminal laws.

ACT: Given the long delay in getting to this point in the ratification process, what is the real urgency in completing ratification now? What will happen if the Senate fails to approve a resolution of ratification by the end of April?

Holum: There are a number of practical impacts. April 29 is not an artificial deadline, as some have said, but a real one, with real consequences. By its terms, the treaty enters into force 180 days after the 65th country deposits its instruments of ratification. Hungary deposited on October 31, 1996, and April 29 is 180 days later.

Within 30 days after that, the Conference of States Parties will meet. That is scheduled for May 6. Then the existing structure of which we are a part, the Preparatory Committee, will go out of existence and a new Organization for the Prohibition of Chemical Weapons [OPCW] will be created. But non members, even though they participated in the PrepCom, cannot be a part of that new OPCW.

That means, for example, the United States could not serve on the Executive Council, which will have 41 members and will be the routine governing body of the treaty. U.S. citizens would not be eligible to serve in positions in the Secretariat. Right now we have about 10 people working in the Provisional Technical Secretariat, including the heads of administration, industrial inspections and security. Those are key positions. Once the OPCW is created, those Americans will have to leave. Then those jobs are obviously going to be filled by somebody else, so we will be frozen out of those leadership positions for years to come. Of course U.S. citizens also would not be eligible as inspectors.

At the same time, the clock will start ticking on sanctions against our own chemical industry, which exports about $60 billion worth of chemicals a year and is very much concerned about the loss of business that would ensue if the United States is not a party to the treaty. Not only will formal trade restrictions phase in, but industry is concerned that its competitors, particularly in Germany and Japan, which are members of the treaty, will market opportunistically, saying their governments have ratified the convention while the United States has not and may not, and so their customers should look elsewhere for stable supplies.

Those are the practical near term impacts of non ratification. Let me add a broader political point. From the day that treaty goes into force, with the United States not a member, our leadership will be undercut on the entire range of proliferation issues, whether it is building multilateral export controls, negotiating a stronger Biological Weapons Convention or trying to intercept dangerous shipments to bad places. All of a sudden, the United States, which the world relies on for leadership on these issues, will be trailing behind the rest of the world. What a dangerous and appalling situation.

ACT: Is the charge that the treaty cannot be effectively verified justified?

Holum: No, it is not. In fact, the treaty is effectively verifiable. That is not to say it is 100 percent verifiable. No treaty is. But it can be verified with sufficient confidence to have a real impact on our security.

The verification issue has two important parts. First, although it would be difficult to detect production of a small quantity of a forbidden chemical, as the quantity grows so as to be militarily significant, and as the country involved begins to weaponize it by putting it into shells, training with it, or preparing to use it, the likelihood of detection rises dramatically. So militarily significant violations are likely to be discovered.

Second, in any case, the treaty will give us more information than we have now about chemical weapon dangers that we need to know about with or without the treaty. We obviously want to find out what the Libyans, Iraqis and Iranians are doing with chemical weapons. The intelligence community wants the treaty in part because its delarations, reporting and inspections will help us monitor the CW threat. And, of course, the treaty makes that information actionable, because the possession of the weapons would be illegal.

These realities inform our overall judgment that the CWC is effectively verifiable. It would create a web of detection and deterrence that will increase the costs, raise the risk of discovery, and so make it less likely for countries to develop chemical weapons.

ACT: You have emphasized the fact that militarily significant quantities of chemical warfare agents would probably be verifiable. What about the issue of very small amounts that might be used by terrorists? How does the convention deal with this threat?

Holum: The main way the treaty deals with the terrorist threat is through the system of controls that would much more closely track the transfers of relevant chemicals around the world by the declarations relating to transfers. Also, as regards terrorists, every country is required to adopt domestic implementing legislation that criminalizes the behavior prohibited by the treaty. That means law enforcement tools against potential terrorist use would be improved.

One element will be heightened awareness. Our domestic implementing legislation under the Biological Weapons Convention has shown how that helps. In 1995, a legitimate supplier of sample medical research materials in Rockville, Maryland, received an order for plague bacillus. He filled the order, but because he knew of the law and this was an out of the ordinary occurrence, he also notified the authorities. It turns out that the customer was a member of a hate group in Ohio and the authorities intervened before he could take any action.

The legal standards will also change. Now, law enforcement agencies can only go after a "conspiracy to use" chemical weapons. Under the CWC implementing legislation, simple possession will be a sufficient basis for action.

Of course, implementing legislation will be in place everywhere around the world. Consider that Iran has signed, and presumably will ratify. Iran is a country that harbors terrorists. If we discover one of the terrorist groups in Iran developing chemical weapons, then Iran has an obligation to take action against them. Failure to do so would be grounds for sanctioning Iran under the treaty. So, the CWC creates stronger tools against terrorism abroad as well as within the United States.

ACT: Would this provision of the convention have been helpful in the case of the Japanese terrorist activity by the Aum Shinrikyo cult which released chemical agents in the Tokyo subway system?

Holum: It is hard to say in any particular case. As I understand it, the Aum Shinrikyo cult acquired the precursor chemicals from a place they might have had access to with or without the convention. On the other hand, the heightened sensitivity, intensified tracking and greater international and domestic controls on the chemicals may have had an impact. One thing we do know about the Tokyo case is that the Japanese certainly concluded that the treaty is relevant because they passed the implementing legislation and the CWC itself within a matter of weeks after the attack. Whether or not you can trace cause and effect between the absence of the treaty and an incident of that kind is not clear; but just consider if we should have a chemical weapon attack in one of our subways, would anybody then be prepared to stand up and proclaim that they had helped defeat a treaty meant to ban poison gas?

ACT: Charges have been made that Russia has developed some new chemical weapons agents that are not covered specifically in the convention's annexes. Are such new agents covered by the treaty, and, if so, is Russia currently in non compliance with the CWC since it has signed?

Holum : Since the treaty hasn't yet entered into force, and Russia hasn't yet ratified, whether development of a new agent is a present violation is a complex question having to do with the Vienna Convention of the Law of Treaties. Most legal experts would probably conclude that the object and purpose of the treaty is not deing defeated.

As to the future, the treaty bans not only those chemical weapon agents specified in the annexes, but all chemical weapon agents, regardless of their ingredients. It allows toxic chemicals generally only to the extent and in the quantities that they are used for legitimate purposes. So any new agent, without commenting on the specifics of intelligence, would be covered by the general provisions of the treaty. Of course, the annexes can also be updated, and the treaty provides specifically for incorporating new agents as they come to light. Again, keep in mind that, without the treaty, nothing the Russians or anyone else does with chemical weapons, except their use, is prohibited. With the treaty, we would have more tools to deal with these allegations.

ACT: If there was evidence that, under the convention, the Russians were continuing to produce a new agent that was not specifically listed in the annexes, the U.S. would still be able to request a challenge inspection under the convention?

Holum: That is correct. And we would.

ACT: Are critics correct in charging that the CWC would have no effect on rogue states, such as Libya, Iran and North Korea, that presumably would not adhere. Could you elaborate what the impact on those countries would be, assuming they remain outside the treaty?

Holum: If they remain outside the treaty, they would be denied access to trade in scheduled chemicals. Some of those chemicals are significant in the fields of agriculture and industry. So there would be an economic cost, that would encourage hold outs to sign. The CWC goes further than any other treaty in explicitly restricting trade with non member countries. In addition, obviously those countries would suffer greater political isolation. We have seen the impact of that isolation work on non members of the nuclear Non Proliferation Treaty.

I think the entire trend in the direction of stronger global rules against non proliferation would have the same effect on the CWC as it has had on the nuclear Non Proliferation Treaty, which now has 185 members, with only five countries holding out. In addition, we would know a lot more about CW programs in non member countries because of the reporting and other restrictions that would apply in the case of countries that are members. There would be a heightened base of knowledge about the programs in non member countries. On the other hand, without the CWC they have a free pass.

ACT: Are critics correct in charging that the CWC would harm U.S. business by burdening it with mountains of expensive paper work and subjecting it to surprise inspections that would violate constitutional rights under the protection clause against unreasonable searches and seizures guaranteed by the Fourth Amendment?

Holum: I think that argument comes from a need on the part of people who oppose this treaty on ideological grounds to come up with arguments that it is actually harmful—not just that it would not help, but that it would actually damage U.S. interests. Otherwise, supporters can obviously say, "What would it hurt? Why can't we have this additional tool even if it is not perfect?" So, opponents come up with this notion that it will adversely affect business—in particular small business.

But, remember that the treaty has the strong support of the Chemical Manufacturers Association [CMA] and the companies that would really be impacted by this treaty, through its requirement for routine reporting and routine inspections. In fact it's also important to remember industry helped draft reporting and inspection procedures and protections for confidential business information. Industry has also independently tested reporting and inspection procedures. CMA members think it is worth the price in order to demonstrate compliance with a global norm against chemical weapons.

The other companies that might be affected number perhaps some 1,000 with about 2,000 facilities where discrete organic chemicals are produced. What they would be required to do is fill out a one page form that would consist of checking quantity boxes—a matter of minutes annually, not a heavy, burdensome requirement. After learning the details of the inspection regime, the National Federation of Independent Business, which had expressed concern at hearing these trumped up charges last year, has said its concerns have been satisfied. So I think the impact on business is a non issue.

ACT: Could you say something about the alleged constitutional issue that there will be searches and seizures that would be contrary to the fourth Amendment, and the implication that proprietary information is compromised by the treaty.

Holum: That is another issue where opponents have tried to conjure up harm in the treaty where none exists. Of course the notion that a treaty could require us to violate the Constituion is a non sequiter because the Constitution overrides any other law, including a treaty; hence, the worst that could happen would be that the Constituion would require us to violate the treaty.

But that also doesn't arise here because the CWC explicitly recognizes that member countries will use their constitutional rules in the inspection process. That means in the United States that any searches will be conducted either voluntarily or pursuant to a warrant. If the inspected facility is part of a heavily regulated industry, as chemical manufacturers tend to be, it would most likely be an administrative search warrant. In cases where that is not applicable, a criminal search warrant would be obtained. There will be no searches whatsoever under the CWC in the United States which are not either by consent or pursuant to a legally issued warrant.

ACT: What is the charge the convention would create a "poisons for peace" program all about?

Holum: This is a third claim in the same vein. It argues that under Article XI of the treaty, the United States will be obliged to share with member countries chemicals and technology that would allow them to build clandestine chemical weapons programs that they otherwise could not pursue. There is, in fact, a general provision in Article XI calling for increased trade in chemicals. This is similar to the language in the Non Proliferation Treaty and in the Biological Weapons Convention that calls for increased commerce and non interference with trade for peaceful uses.

Yet export controls in those areas have not disappeared, but in fact have grown stronger over the years. That's because the general languange on trade does not override the specific obligation not to assist other countries in acquiring proscribed weapons. The difference with the CWC is that it is even more explicitly conditioned on the basic obligation under Article I of the treaty not to assist another country to acquire chemical weapons.

The truth is that nothing in the treaty mandates trade or requires the transfer of intellectual property or chemical weapons technology. Ironically, the poisons for peace argument rests on an interpretation of the treaty that the Iranians are pushing, and hardly anyone else buys it except those here in the U.S. who profess to be staunch advocates of firmness in international affairs but nonetheless echo Iran's arguments about how non proliferation regimes should be interpreted.

ACT: How does the administration plan to respond to Senator Helms' recommendations to Senate Majority Leader Trent Lott that consideration of the convention be deferred until the Senate has had a chance to focus first on "Republican priorities," which, according to Helms, includes legislation to restructure U.S. foreign policy agencies, to achieve comprehensive reform of the United Nations, to act on modifications to the Conventional Armed Forces in Europe [CFE] Treaty and the ABM Treaty, and to deploy a national missile defense?

Holum: There are two ways to respond to that. One is that action on the CWC has already been deferred for the several years. Now we are approaching the point where we have a clear tangible costs to our security interests. So there is no justification for further delay. And it is inappropriate to link the CWC to other issues because it is not a favor to this president, but rather an improvement to national security. Exposing the American people and American forces to avoidable dangers is not a good bargaining chip.

Just consider how much better off we might well be today if START II had not been held up in the Senate in connection with the consolidation and reorganization argument. Had we acted sooner, the previous Russian Duma might have been more inclined to ratify START II. Now we are in a position where we are having to be concerned with whether the Russian Duma will ever ratify START II—demonstrating the costs to the country when those kinds of connections are made. We should not repeat that mistake with the CWC.

We will obviously talk to Senators Helms and Lott about those other matters and they are important and legitimate issues to be discussed. But it is just not appropriate to hold up the CWC as a lever.

ACT: Are you personally satisfied now that the administration is giving adequate priority to obtaining early Senate approval of the CWC?

Holum: Yes, I am. The president actually has been deeply committed to this all along, and has devoted a lot of his time and energy and certainly his words in successive State of the Union addresses and elsewhere. His determination is now reinforced by a highly coordinated and highly visible effort on the part of the entire administration, from the president on down, including Secretary of State Madeleine Albright, who has repeatedly raised the issue and brought it up with President Bush and former Secretary of State James Baker on the trip to Houston. Secretary of Defense William Cohen has been actively engaged. National Security Advisor Sandy Berger has been leading the effort to negotiate with the Senate. So you are seeing and you will continue to see a very vigorous effort to bolster the negotiations that we hope to complete successfully with Senator Lott and his colleagues on behalf of the treaty.

ACT: Do you think that the administration is getting adequate support from President Bush and the members of his administration that negotiated the treaty?

Holum: Yes, I thought President Bush's statement the other day in Texas was very strong, and Secretary Baker has written an excellent op ed piece in support of the treaty. Former Secretary of State Lawrence Eagleberger has been supportive and former National Security Advisor Brent Scowcroft has also written persuasively. Senator [Richard] Lugar [R IN] has been an eloquent and forceful advocate.

So, we are getting a significant amount of Republican support. When you think about it, this treaty really ought to be a flagship of bipartisanship. After last fall's election everybody came back to Washington—President Clinton and the Republican majority in the Congress—convinced that the American people want the two parties to collaborate to get things done. There is no better candidate in the international sphere than the CWC, negotiated by a Republican president and pushed to ratification by a Democratic president.

ACT: What do you think will happen to the rest of the administration's broad arms control agenda if, for one reason or another, the Senate fails to act on CWC in the next several months?

Holum: The action on arms control is really in two places now: in the Russian Duma on START II and in the U.S. Senate on the CWC, on the Comprehensive Test Ban Treaty, on the Convention on Conventional Weapons protocols dealing with landmines and blinding lasers and other weapons, on two nuclear weapons free zones soon to be up for consideration and on the "flanks" agreement on the CFE Treaty. The CWC is the first in a series of other agreements that will really tell the tale as to whether we can effectively practice arms control in the years immediately ahead. The failure of the Senate to approve the CWC would undercut not only those other treaties already negotiated, but a number of others still to be achieved. Our negotiating position would be seriously hampered if our negotiating partners conclude that whatever is agreed internationally can be drained of any meaning when it comes before our Senate.

ACT: At this point, would you venture a prediction as to whether the Senate will, in fact, complete action on ratification prior to the April 29 deadline?

Holum: I think we will ratify the treaty, but it is going to be very close—a very difficult effort between now and then. I am not taking anything for granted. What I hope will happen is that Senator Lott and his colleagues on the Republican side will recognize the importance of this treaty from a national security standpoint, notwithstanding any misgivings. At the same time, I hope we will be able to work with them to fashion language in the resolution of ratification that will address their concerns in ways that do not undercut or contradict the provisions of the treaty. That should be possible, but it still requires a considerable amount of work and good faith on both sides.