The Chemical Weapons Convention: the Second Review Conference and Beyond

By Scott Spence and Dr Ralf Trapp

The forthcoming Second Review Conference of the Chemical Weapons Convention provides an opportunity to review the impact of the decade that has passed since the Convention’s entry into force.

Key points

• The Chemical Weapons Convention came into force in April 1997 and is about to undergo its Second Review Conference
• Since its entry into force, 26,296 metric tonnes of declared chemical agent and 2.85 million declared containers and munitions have been destroyed
• By 2012, all chemical weapons stockpiles are scheduled to have been destroyed; at present, it is unclear whether this deadline will be met

Since the entry into force of the Chemical Weapons Convention in April 1997, much has been accomplished to ensure that the world is free of the horror of chemical warfare. In total, 183 countries are now members of the Convention and participate in the Organisation for the Prohibition of Chemical Weapons (OPCW), the international agency implementing the Convention’s chemical weapons destruction and verification regime.

The United Kingdom is one of the original members of the Convention, having given up its offensive chemical weapons programme over fifty years ago.[1]  Like the OPCW’s other 182 member states, the UK recognises that it is in its own national and international security interests to allow the OPCW to conduct inspections of declared chemical weapons stockpiles, destruction facilities and former production facilities to ensure their timely and verified destruction, and of chemical industry facilities to prevent the formulation of new chemical weapons.

Since events associated with the Convention’s tenth anniversary ended,[2] the OPCW’s attention has been focused toward the Second Review Conference, which will be held from 7 to 18 April 2008, and the fact that we are now only four years away from the deadline for the complete destruction of all chemical weapons stockpiles. Preparations for the Second Review Conference are well under way, led by the UK’s ambassador to the OPCW, Lyn Parker, who chairs a working group of the OPCW’s Executive Council to prepare the Second Review Conference. It is therefore timely to examine the progress that has been made under the Convention and to flag the challenges that lie ahead.

Universality

Universal adherence to the Convention is a key factor in ensuring that the regime that bans chemical weapons is truly global, and that it can stand the test of time. The OPCW’s Executive Council adopted a ‘universality action plan’ at its twenty-third meeting in October 2003,[3]  with the objective of achieving universal adherence to the Convention ten years after its entry into force. Subsequent decisions by the Conference of the States Parties, at its Tenth and Eleventh Sessions, gave further support to this objective.[4]

Since then, a combination of high-level contacts by the Director General with senior officials of states not party to the original Convention and regional organisations, as well as with national and regional workshops in Africa, Asia, Latin America and the Caribbean, the Mediterranean Basin and Middle East; support from the European Union through three joint actions; and bilateral work by a number of states party has contributed to an increase in the number of states that have joined the Convention.

At the time of the adoption of the Action Plan in 2003, there were forty states not party (not signed up to the Convention). That number has since decreased to thirteen, of which five (The Bahamas, Dominican Republic, Guinea-Bissau, Israel and Myanmar) are signatory states.[5]  States that have failed to take action on the Convention include Angola, Egypt, Iraq, Lebanon, North Korea, Somalia and Syria.

The OPCW anticipates making some progress in universality with the remaining Caribbean states and Africa, although Somalia’s accession may depend on improvements in its internal situation. Success in the Middle East may be limited for now to Iraq and Lebanon; Egypt, Israel and Syria refrain from joining for a variety of reasons, all linked to the Middle East conflict. In Asia, dialogue has continued with Myanmar (Burma) on joining the Convention but the OPCW has not been able to engage with North Korea. The OPCW is increasingly faced with the hardest cases and, in meeting the challenge of achieving universality, will have little choice but to carefully tailor its outreach and convince the remaining states of the economic and security benefits that accrue from OPCW membership, and of the political and security pitfalls of not adhering to what has otherwise become a universal regime that has effectively rendered chemical weapons illegal. It is obviously in the best interests of the UK and other OPCW member states that the remaining states adhere to the Convention as soon as possible, in particular as there are some that have been associated with offensive CW programmes. That this can be achieved, and what role the UK can play to bring rogue states into the realm of the CW ban, has been shown by the accession of Libya in 2004.

Developments in Science and Technology

Recent advances in the chemical industry may pose challenges to the Convention’s non-proliferation regime. On the technology side, such changes include smaller, more easily adaptable production operations; smoother switchover capabilities for the production of different chemicals depending on market demands; micro- or mini-reactor technologies; and the speed with which new compounds can be synthesised and screened. Most importantly, the shape of the chemical industry itself is changing, with production moving from traditional locations in the USA, Western Europe and Japan to the rest of Asia, South America and other parts of the globe. Some of the countries where new chemical operations are being set up have weak administrative systems and gaps in their national implementation measures to enforce the Convention.  This challenges the effectiveness of treaty verification and compliance, as well as of traditional non-proliferation measures to prevent the spread of chemical weapons.

Biotechnology is also playing a larger role in chemicals production, particularly in the areas of pharmaceuticals, biofuels, pesticides and plastics. The traditional barriers between chemistry and biology are gradually disappearing, not just in research but also in production. New physiologically-active compounds are being developed, and biologically-mediated processes are being used for chemicals manufacturing.

In order to stay on top of these developments, the OPCW and its membership, including the UK, need to maintain their commitment to the ‘general purpose criterion’, by which any hostile use of toxic chemicals by state or non-state actors is prohibited under the Convention. It must also ensure that its industry verification regime remains robust and vigilant: in other words, capable of responding to rapid technological changes.

The Verification Regime

The main objective of the Convention is chemical disarmament. Since its entry into force, some 26,296 of the 71,330 metric tonnes of declared chemical agent, and 2.85 million of the 8.67 million declared munitions or containers, have been verified as destroyed.[6]  The OPCW has conducted more than 1,800 inspections at nearly 200 chemical weapons-related sites including chemical weapons production, destruction and storage facilities and abandoned[7] and old[8] chemical weapons sites.[9] Based on the most recent publicly available statistics,  the UK received two OPCW inspections in 2006: one at the old chemical weapons storage and destruction facilities at the Defence Science and Technology Laboratory at Porton Down and another at the former chemical weapons production facility at Rhydymwyn. Of the six member states that have declared weapons stockpiles – Albania, India, Libya, the Russian Federation, the United States and one other state party[10] – Albania has already destroyed its entire weapons stockpile. The remaining possessor states have been granted extensions for the destruction of their Category 1 chemical weapons.[11]  In addition, Libya has been granted an extension for the destruction of its Category 2 chemical weapons.[12]

The complete destruction of chemical weapons by 2012 poses a significant challenge for the OPCW and the member states that possess them. Of the declared Category 1 chemical weapons, 64 per cent have yet to be destroyed. The two major possessors, the Russian Federation and the United States, have been granted extensions until 2012 but it is unclear whether they will meet this target. It is, however, too early to address such possible delays at the 2008 Review Conference and the OPCW will have to closely monitor progress with chemical weapons destruction in coming years so as to be able to react to any future delays. 

Non-proliferation of Chemical Weapons

The OPCW is mandated to ensure that chemicals are only used for permitted purposes. Chemical weapons non-proliferation is accomplished through national enforcement measures and, at the international level, a complex industry verification regime involving three sets of scheduled chemicals which are categorised according to their historical relevance for chemical weapons production and thus their risk to the Convention’s objectives, and chemical plants producing discrete organic chemicals. To date, the OPCW has conducted more than 1,300 inspections at nearly 1,000 industrial sites.[13] In 2006 (the most recent publicly available statistics), the UK received one inspection at a Schedule 1 facility, five at Schedule 2 industrial sites and three at discrete organic chemical industrial sites.[14] Though the OPCW is not a counter-terrorist organisation, the verification of chemical industry facilities, such as those in the UK, has an added benefit of keeping deadly chemicals out of the hands of terrorists and other non-state actors.

In order to ensure that the Convention’s non-proliferation regime remains robust, its member states should address several outstanding issues at the Second Review Conference, some going back years. These include an improved site selection mechanism and more inspections for chemical plant sites producing discrete organic chemicals, late submissions of Schedule 3 plant site declarations, discrepancies between import and export declarations for scheduled chemicals, concentration limits for declarations of mixtures containing Schedule 2A and 2A* chemicals, a broader acceptance of sequential inspections as a way to achieve greater efficiencies, and additional measures regarding transfers of Schedule 3 chemicals to states not party to ensure that these chemicals are not diverted for chemical weapons purposes. Speaking more generally, the OPCW needs to come to grips with how its verification system in the chemical industry needs to be adjusted over time to take account of the changes in science, technology and chemicals manufacturing.

National Implementation

Article VII of the Convention requires all states party to adopt the necessary measures to implement their treaty obligations. This is normally accomplished through the adoption of legislation and the promulgation of regulations, a complex and lengthy undertaking. Recognising that the OPCW’s membership was not making significant progress in this area, and acknowledging that proper national implementation was key to preventing access by non-state actors to materials that could be used as chemical weapons, the Conference adopted an action plan at its Eighth Session[15] in 2003, and subsequently a series of follow-up measures to it.[16]

The number of states party that have designated or established a national authority (a point of contact as well as a national focal point to co-ordinate implementation) has increased from 127 to 175 since 2003. The UK’s national authority is located in the Department for Business, Enterprise & Regulatory Reform (BERR).[17]  Its regulatory powers for implementation of the Convention, including carrying out the declaration and verification provisions, are contained in the Chemical Weapons Act 1996.

In 2003, ninety-four states party had notified the OPCW that they had at least some legislation to implement the Convention; that number rose to 124 in 2007. The number of states party with comprehensive legislation is lower – seventy-eight now have comprehensive legislation against fifty-one in 2003 – but this does not reflect the number of states that are in the process of drafting bills or shepherding them through their legislative processes. The UK’s legislation is comprehensive.

These results have been achieved through a series of technical assistance visits, sub-regional meetings, thematic workshops, various types of meetings for national authorities and publications and electronic tools. Nevertheless, the OPCW will need to continue working closely with states party, particularly smaller ones with small bureaucracies, competing priorities and limited resources, to ensure that they can properly regulate chemicals and prevent their misuse, including by non-state actors and monitor trade and production activities involving scheduled chemicals.

Consultation, Co-operation and Fact-finding

There are four mechanisms in the Convention for states party to ensure that they resolve compliance disputes with regard to their international obligations including, most importantly, their solemn duty to refrain from the production and use of chemical weapons.

1. Bilateral consultations and clarification

Bilateral consultations among states party concerning non-compliance questions have apparently been used in the past with success, and the first Review Conference encouraged states party to make further use of them. It is difficult to confirm how effective this tool has been, as little information on them is made public. To date, the Convention’s own clarification mechanisms – which are overseen by the Executive Council and, if ultimately necessary, the Conference at a special session – have not been invoked.

2. Challenge inspections

A challenge inspection is a more intrusive way to verify whether a state party has complied or not with any of its international obligations under the Convention, through on-site inspections following an ‘anywhere, anytime, no right of refusal’ scheme. The UK was a primary architect of this intrusive verification instrument. Beginning in the 1980s, it has been conducting national trial challenge inspections as well as a number of international exercises to develop the procedures for this special type of inspection, and at the same time prepare its own military and industrial sites for the possibility of having to receive one. To date, the OPCW has not received a request to conduct a challenge inspection.

The OPCW has readied itself for an eventual challenge inspection and, since the First Review Conference in 2003, has carried out specialised training for its inspectors, table-top and field exercises to achieve this objective. The UK has been a steady partner for the OPCW in training their inspectors in the conduct of challenge inspections, and has hosted three field exercises in 2004, 2005 and 2006.

A few states party continue to fall short of providing all administrative arrangements required for smooth inspection conduct (for instance, advance assignment of radio frequencies for inspection team communications, designated points of entry, issuance of standing diplomatic clearance numbers for unscheduled inspection aircraft or issuance of multiple-entry visas for OPCW inspectors). These deficiencies may in some cases impede effective inspection conduct and must be rectified without any further delay.

3. Investigations of alleged use

This mechanism is directed towards alleged use of chemical weapons or riot control agents as a method of warfare. To date, the OPCW has not received a request to conduct such an investigation. It has nevertheless readied itself for one, and conducted specialised training and a series of table-top and field exercises. The OPCW needs to strengthen its investigation capacity by establishing a biomedical analysis capability. It needs to be prepared for investigations in remote, adverse environments with small and light equipment, combine its investigative capabilities with effective delivery of assistance to victims of chemical weapons, and improve its coordination with other international and national agencies involved in emergency responses. The United Kingdom contributes to the further development of the OPCW’s capability to investigate allegations of chemical weapons use, bringing to the table its own experience with the analysis of samples taken from victims of chemical weapons use during the Iran-Iraq war.

Assistance and Protection

A state party to the Convention is entitled to receive assistance and protection in the event that chemical weapons or riot control agents as a method of warfare have been used against it, or if another state threatens to commit prohibited activities. Though the OPCW has not received any requests for assistance to date, it has conducted regional and sub-regional training, developed a protection databank and set up a protection network of experts, and established an assistance response system to ensure that it can adequately provide assistance in the event of a chemical weapons attack. Despite this progress, many states party have yet to pledge the financial or other assistance they would provide through the OPCW to states party attacked with chemical weapons, as required by Article X. To ensure readiness to respond, the organisation has its own limited stockpile of protection equipment.

The OPCW is exploring coordination with other international agencies such as the United Nations Office for the Coordination of Humanitarian Affairs. It has also been examining its role in the event of a chemical attack by terrorists or other non-state actors, which under most scenarios would be guided by the terms of Article X.

Economic and Technological Development

Article XI of the Convention promotes international co-operation in the field of chemical activities for peaceful purposes. A call by the First Review Conference to enhance such activities was met by a decision of the Conference at its Tenth Session.[18] Since 2000, the OPCW has introduced several projects including internship support; Associate Programme (supported by the UK’s Surrey University); Laboratory Assistance Programme; internships at the Spiez Laboratory (Switzerland), VERIFIN (Finland) and Technical University of Delft (Netherlands); Analytical Skills Development Course; and a Laboratory Skills Enhancement Course. In addition, the European Union has sponsored two projects through joint actions: equipment support and laboratory assistance. A total of 603 projects have been supported by the OPCW to date; the beneficiaries are predominantly developing countries.

Conclusion

At more than ten years old and currently undergoing its second review, the Convention and its implementing body, the OPCW, appear healthy. However, some areas need attention, including the difficulties the Russian Federation and United States may have in meeting the 2012 deadline for complete destruction of their chemical weapons stockpiles. A few states of concern remain outside the Convention regime, which weakens an otherwise global commitment to the complete prohibition of this abhorrent form of warfare. Moreover, patchy national implementation of the Convention with gaps in the legislative and regulatory frameworks of many states party undermines non-proliferation objectives. Finally, the Second Review Conference will need to begin contemplating the OPCW’s future after the complete destruction of chemical weapons stockpiles, so as to ensure that whilst international cooperation in the peaceful uses of chemistry thrives, states and non-state actors, including terrorists, are never allowed to acquire toxic chemicals for hostile purposes.

Scott Spence is an attorney and legal consultant based in The Hague with expertise in national implementation of chemical and biological weapons-related legislation.

Dr Ralf Trapp is an independent consultant working in the field of chemical and biological weapons disarmament. A chemist and toxicologist by training, he worked in senior positions at the OPCW in The Hague between 1993 and 2005.

Notes

[1] Annual Report 2006: Operation of the Chemical Weapons Act 1996 (DTI).

[2] The OPCW celebrated its tenth anniversary with events in member states and international organisations, a high-level meeting in New York, an academic forum and industry and protection forum, and the unveiling of a memorial at the Organisation’s headquarters (see http://www.opcw.org/10years/index.html).

[3] EC-M-23/Dec.3, dated 24 October 2003.

[4] C-10/Dec.11, dated 10 November 2005 and C-11/Dec.8, dated 8 December 2006.

[5] In other words, those states that signed the treaty before its entry into force, but which have yet to deposit an instrument of ratification with the Secretary General of the United Nations (the depository). Under international law, these signatory states, although not party to the treaty, are bound by its basic undertakings.

[6] www.opcw.org accessed 31 January 2008.

[7] According to the Convention, Abandoned Chemical Weapons are ‘Chemical weapons, including old chemical weapons, abandoned by a State after 1 January 1925 on the territory of another State without the consent of the latter’.

[8] According to the Convention, Old Chemical Weapons are ‘(a) Chemical weapons which were produced before 1925; or (b) Chemical weapons produced in the period between 1925 and 1946 that have deteriorated to such extent that they can no longer be used as chemical weapons’.

[9] Annual Report 2006: Operation of the Chemical Weapons Act 1996 (DTI).

[10] The name of this possessor State is withheld publicly. 

[11] According to the Convention, Category 1 weapons are ‘weapons on the basis of Schedule 1 chemicals and their parts and components’.

[12] According to the Convention, Category 2 weapons are ‘weapons on the basis of all other chemicals [other than Schedule 1 chemicals] and their parts and components’.

[13] www.opcw.org visited 31 January 2008.

[14] Annual Report 2006: Operation of the Chemical Weapons Act 1996 (DTI).

[15] C-8/DEC.16, dated 24 October 2003.

[16] C-9/DEC.4, dated 30 November 2004; C-10/DEC.16, dated 11 November 2005; C-11/DEC.4, dated 6 December 2006; C-12/DEC.9, dated 9 November 2007.

[17] See http://www3.dti.gov.uk/energy/non-proliferation/cbw/national-
authority/page40746.html

[18] C-10/DEC.14, dated 11 November 2005.

The views expressed above are the author's own and do not reflect those of RUSI or their own organisation