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At One Year, CWC Progress Tempered by Limited Transparency

April 1998

By Erik J. Leklem

The first year of formal activity for the Chemical Weapons Convention (CWC) since its entry into force on April 29, 1997 has seen measured progress toward the establishment of a global norm against the possession, production, transfer and use of chemical weapons (CW). Now ratified by 108 countries, including the major CW possessors (Russia and the United States) and a number of suspected CW states such as Iran and Pakistan, the treaty has been signed (but not ratified) by 60 additional nations that are legally bound to the convention's principles and objectives. (See factfile.) The treaty's implementing body, the Organization for the Prohibition of Chemical Weapons (OPCW), has conducted over 200 non-challenge, on-site inspections of declared CW facilities or treaty-related facilities in 25 countries, including some 60 at U.S. sites.

According to the OPCW, eight countries (named by U.S. officials as the United States, Britain, China, France, India, Japan, Russia and South Korea) have declared former or existing CW production facilities. (Japan's declaration refers to the "facility" established by Aum Shinrikyo, the religious cult responsible for the 1995 terrorist attack on the Tokyo subway system.) Only four of these states (the United States, Russia, India and South Korea) have declared possession of stockpiles and have submitted their required destruction plans. The United States is now the only country eliminating its stockpile on a large scale. Under the CWC, all stockpiles and CW-related facilities must be destroyed within 10 years of the treaty's entry into force for each state-party, with the possibility of up to a five-year extension.

Despite this progress, however, the CWC continues to face a number of challenges. Several suspected CW states have not yet signed the treaty, including Egypt, Iraq, Libya, North Korea and Syria. In addition, the convention's transparency regime has not been fully supported by states-parties; as of April 30, less than three-quarters had submitted the required data declarations on CW stockpiles, CW-related facilities and other treaty-relevant data, many of which were partial or incomplete. As a result, a majority of states-parties, including the United States, are in "technical non-compliance" with the treaty at the one-year mark. This lingering problem has interfered with more rapid implementation of the treaty and discouraged efforts to improve universal adherence to the regime.

Establishing a 'Baseline' In an April 9 interview, OPCW Director-General Jose M. Bustani said that implementation of the CWC has progressed "extremely well with respect to the treaty's inspection regime." By mid-February, the OPCW had conducted initial inspections at all declared CW-related facilities of the original states-parties and those related to so-called "Schedule 1" chemicals (those deemed most dangerous and with few or no permitted uses, as identified in the first of the treaty's three lists, or schedules, contained in a treaty annex). The OPCW is now conducting initial inspections at declared "Schedule 2" facilities, which contain "significant risk" chemicals that are not produced in large commercial quantities. "The Secretariat's inspectors have performed very well," said Bustani.

During the treaty's first year of operation, 35 U.S. military or government-related facilities received "baseline" inspections. "[W]e are pleased with the relatively smooth operations of the treaty implementation and inspections; any problems have been few and far between," said one U.S. official familiar with implementation. According to a U.S. intelligence official, there have been no known attempts to steal national security or commercial business information (from private companies working at the sites) as a result of the inspections. In addition, the OPCW is continuously monitoring activities at three U.S. Army destruction facilities the Johnston Atoll Chemical Agent Disposal System (JACADS) facility in the Pacific, the Tooele Chemical Destruction Facility (TOCDF) in Utah and the Hawthorne Army Depot in Nevada.

Setting the Example

Transparency under the CWC has been limited by the large number of delinquent, incomplete or missing data declarations to the OPCW. Only 78 of the 108 states-parties have submitted declarations, nearly half of which were late and many of which remain incomplete. For example, although the United States submitted a version of its initial data declaration to the OPCW in May 1997, information on U.S. commercial facilities was not included because Congress has yet to approve the "implementing legislation" needed to codify U.S. obligations, including those of the private sector, under the convention.

The Senate passed a version of the legislation in May 1997, but the House of Representatives only passed the legislation last November after attaching it to an unrelated bill that would impose sanctions on Russian firms for assisting Iran with its ballistic missile programs. Although the combined bill (H.R. 2709) was placed on the Senate calendar in late January, the Senate has delayed action as the Clinton administration has sought to strengthen Russian export controls without the imposition of sanctions. (See ACT, January/February 1998.) On April 3, however, Senate Majority Leader Trent Lott (R-MS) requested a unanimous consent agreement to schedule Senate consideration of H.R. 2709 for May 20-22.

Reportedly, several countries have resisted pressures to expedite their ratification process because of the U.S. delay. "Everybody expects the United States to set the example," Bustani said, "that is what makes the non-compliance so important." Bustani noted that the diplomatic classification of "technical non-compliance" would not be maintained indefinitely and cautioned, "there is a limit to this tolerance." In an April 29 floor speech observing the CWC anniversary, Senator Joseph Biden (D-DE) said the inaction has hurt U.S. national security and made the United States "a violator of the Convention." One U.S. official said the situation is "more than embarrassing. It undercuts our leadership and our ability to question other states on matters of compliance."

Iran is another country considered to be in technical non-compliance because, as of the end of April, it had not yet submitted a declaration on its CW activities. The United States suspects that Iran has a moderately sized stockpile of blister, blood and choking agents and that it may be conducting research on nerve agents, but Washington's ability to take full advantage of the treaty's verification regime which includes a "challenge" inspection mechanism that was not used during the first year has been severely limited because of its own non-compliance. The U.S. status as a non-compliant state-party has also undermined Washington's ability to clarify India's declaration, which lacked information on suspected nerve agent capabilities. The United States is now trying to address the issue through the OPCW.

In a further complication, OPCW officials and other states-parties have been critical of provisions within the U.S. implementing legislation. One provision, for example, would allow the president to block a challenge inspection of a U.S. facility on grounds of national security, although the CWC clearly states that challenge inspections cannot be refused. Another provision would prohibit OPCW inspectors from taking samples obtained from U.S. facilities outside of the United States for analysis, and yet another would allow only one inspection per year of a "Schedule 2" or "Schedule 3" (chemicals and precursors that are "a risk," which are produced in large quantities commercially) facility, whereas the treaty allows two. Administration officials familiar with the legislation have expressed displeasure with these congressionally mandated provisions, but nevertheless believe that none are "treaty busters," because they are unlikely to be implemented or tested.