[Senate Executive Report 104-33]
[From the U.S. Government Publishing Office]
104th Congress Exec. Report
SENATE
2d Session 104-33
_______________________________________________________________________
THE CHEMICAL WEAPONS CONVENTION
_______
September 11, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. Helms, from the Committee on Foreign Relations, submitted the
following
R E P O R T
together with
MAJORITY and MINORITY VIEWS
[To accompany Treaty Doc. 103-21]
The Committee on Foreign Relations, to which was referred
the Convention on the Prohibition of Development, Production,
Stockpiling and Use of Chemical Weapons and on Their
Destruction, opened for signature and signed by the United
States at Paris on January 13, 1993, including the following
documents, which are integral parts thereof: the Annex on
Chemicals; the Annex on Implementation and Verification; and
the Annex on the Protection of Confidential Information, having
considered the same, reports favorably thereon and recommends
that the Senate give its advice and consent to ratification
thereof subject to 7 conditions and 11 declarations as set
forth in this report and the accompanying resolution of
ratification.
CONTENTS
Page
I. Purpose..........................................................2
II. Treaty Terms.....................................................2
III. Treaty Obligations...............................................7
IV. Background......................................................12
V. Committee Action................................................17
VI. Resolution of Ratification......................................19
VII. Article-by-Article Analysis.....................................32
VIII.Majority Views.................................................162
IX. Minority Views.................................................241
I. Purpose
The purpose of the Convention on the Prohibition of
Development, Production, Stockpiling and Use of Chemical
Weapons and on Their Destruction (The Chemical Weapons
Convention or ``CWC'') is to create a global ban on the use,
development, production, acquisition, stockpiling, or transfer
of chemical weapons. The Convention seeks to reinforce the
international norm against the use of chemical weapons by
reaffirming and building upon the principles, objectives, and
obligations assumed under two other international agreements:
(1) the 1925 Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous or Other Gases, and of Bacteriological
Methods of Warfare; and (2) the 1972 Convention on the
Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on Their
Destruction, or the Biological Weapons Convention (BWC).
The United States has been engaged in negotiations for the
elimination of weapons for chemical and biological warfare for
more than 70 years. The Geneva Protocol and the BWC are the two
basic treaties now in force. Most countries, including the
United States, are parties to both. The Geneva Protocol of 1925
prohibits the use in war by a Party against another Party of
chemical and biological weapons, but places no restriction on
production or possession of such weapons. In addition,
reservations attached to the Protocol by many countries,
including the United States, preserve the right to use chemical
weapons in retaliation. The Biological Weapons Convention, on
the other hand, outlaws the development, production,
stockpiling, acquisition, or retention of biological and toxin
weapons and provides for their destruction. (Toxins are
considered both chemical and biological weapons in that they
are biologically derived but act in a chemical manner. Thus,
toxins are also covered by the Chemical Weapons Convention.)
However, the BWC does not contain verification provisions. The
administration is currently working with other nations to
expand the BWC drawing upon the verification regime contained
in the CWC.
As noted, the CWC goes beyond both the 1925 Geneva Protocol
and the BWC by prohibiting any use of chemical weapons in war--
including retaliatory use--as well as military preparations for
the use of chemical weapons, and by establishing a verification
regime to monitor compliance with the Convention. The CWC
requires member states to declare all of their existing
chemical weapons and chemical weapons storage and production
facilities, requires their indigenous commercial chemical
industries to declare their production activities and to allow
an international inspectorate to examine those declarations and
to have access to both military and commercial facilities, and
to completely eliminate all of their chemical weapons within 10
years of the Convention's entry into force. The goals of the
CWC are to eliminate the possession of chemical weapons, to
reverse chemical weapons proliferation, and to preclude any
future use of these weapons.
II. Treaty Terms
The Chemical Weapons Convention consists of the main Treaty
text and three annexes, together with two documents, formally
transmitted to the Senate by the President on November 23,
1993, for the Senate's advice and consent to ratification. The
CWC is a treaty with a preamble and 24 Articles with an
unlimited duration, and three annexes as follows:
the Annex on Chemicals;
the Annex on Implementation and Verification (the
``Verification Annex''); and
the Annex on the Protection of Confidential
Information (the ``Confidentiality Annex'').
The President also transmitted documents associated with,
but not integral parts of, the Annexes or the Chemical Weapons
Convention. These documents embody legally binding commitments
regarding the establishment of the Preparatory Commission for
the Organization for the Prohibition of Chemical Weapons, and
on privileges, immunities, practical arrangements, and
commitments undertaken with respect to the hosting of the
Preparatory Commission. These documents are relevant to the
consideration of the CWC by the Senate. No new U.S. security
assurances or guarantees are associated with any of these
documents.
a. the treaty text
Article I contains the principal obligations undertaken by
countries that become parties to the Convention. Parties are
prohibited from:
(a) Developing, producing, otherwise acquiring,
stockpiling or retaining chemical weapons or
transferring them, directly or indirectly, to anyone;
(b) Using chemical weapons under any circumstances,
including retaliatory use;
(c) Engaging in any military preparations to use
chemical weapons or assisting, encouraging, or inducing
anyone to engage in any activity prohibited by the CWC;
and
(d) Using riot control agents as a ``method of
warfare.''
Article II provides the definitions used in the Articles
and Annexes and the criteria used to determine what is included
within the scope of the Convention's controls. The definition
of ``chemical weapons'' is specifically broad to encompass all
known, unknown and future toxic chemicals, so that novel, as
well as traditional chemical agents, will be prohibited in
types and quantities that cannot be justified for permitted
purposes. Article II also defines what is meant by the phrase
``purposes not prohibited under this Convention.'' (Additional
definitions are found in paragraph 1 of Article X, Part I of
the Verification Annex, and paragraph 12 of Part IV(A) of the
Verification Annex.)
Article III requires all States Parties to declare whether
or not they possess chemical weapons, including old and/or
abandoned chemical weapons, chemical weapons production
facilities and facilities or establishments that have been
designed, constructed or used primarily for chemical weapons
since January 1, 1946. States Parties are also required to
report any chemical weapons on its territory that are owned and
possessed by another State and located in any place under the
jurisdiction or control of another State. Article III also
requires States to declare any shipments, direct or indirect,
of any chemical weapons, or chemical weapons production
equipment, to or from its territory since January 1, 1946.
Article IV describes the obligations of States Parties
regarding destruction of chemical weapons, including the scope
of the obligation, verification procedures, destruction,
reporting of destruction activities, safety and environmental
standards for destruction, bilateral and multilateral
verification arrangements and costs of verification and
destruction. Article IV also specifies that duplication of
bilateral verification activities should be avoided, provided
that the bilateral efforts are consistent with the Convention's
provisions and that the States Parties involved keep the
Organization fully informed of their verification activities.
This provision was added to limit the duplicative cost of
verification in instances in which States are already planning
bilateral destruction and verification activities, namely
between the United States and the Russian Federation.
Article V describes the obligation by States Parties to
destroy chemical weapons production facilities. This article
specifies that each State Party immediately cease all
production of chemical weapons and that all chemical weapon
production facilities must be closed within 90 days of the
Convention's entry into force for a State Party. Each State
Party is responsible for the destruction of all chemical
weapons production facilities on its territory or any other
place under its jurisdiction or control, regardless of
ownership. As with Article IV, this article specifies that
duplication of verification efforts of bilateral or
multilateral arrangements should be avoided as long as those
bilateral or multilateral arrangements are consistent with the
Convention's requirements.
Article VI describes activities that are not prohibited
under the Convention. It establishes an international
verification regime for States Parties' chemical industries in
order to allow legitimate commercial chemical production while
guarding against clandestine chemical weapon production.
Article VI also states that the Technical Secretariat shall
avoid undue intrusion into the State Party's chemical
activities while conducting verification activities. Further,
the article applies the prohibition on hampering a State
Party's economic or technological development in Article XI
specifically to chemical industry verification.
Article VII requires States Parties to develop implementing
legislation. This is to make sure that private individuals and
nongovernmental organizations anywhere on a State Party's
territory or under its jurisdiction are prohibited from the
same activities as the State Party. Article VII requires each
State Party to establish or designate a National Authority to
be the national focal point for liaison with the Organization
and other States Parties. Article VII also requires each State
Party to treat all information and data received from the
Organization as confidential to protect information gathered
during inspections from being used for purposes not related to
the Convention, such as for commercial advantage.
Article VIII establishes the Organization for the
Prohibition of Chemical Weapons, the Conference of the States
Parties, the Executive Council and the Technical Secretariat,
and details the general provisions regarding the Organization.
This article also sets forth the rules for financing the
Organization.
Article IX gives States Parties the right to request
challenge inspections. However, Article IX also declares that
States Parties should, whenever possible, first make every
effort to clarify and resolve any compliance issues before
requesting an inspection. The State Party receiving the request
is required to provide sufficient information to clarify the
concern to the requesting State Party as soon as possible, but
in any case within 10 days of receiving the request. Article IX
also requires an inspected State Party to make every reasonable
effort to allow the inspection team to fulfill its mandate,
while giving the inspected party the right to prevent
disclosure of confidential information and data not related to
the Convention. Article IX also gives the Executive Council the
power, in limited circumstances, to cancel an inspection if it
considers the inspection request to be frivolous, abusive, or
clearly beyond the scope of the Convention.
Article X establishes procedures for assistance to States
Parties that are attacked or threatened with the attack by
chemical weapons. ``Assistance'' is defined as the coordination
and delivery to the threatened State Party of protection
against chemical weapons, including detection equipment,
protective equipment, decontamination equipment, medical
antidotes and advice on any of these measures. Article X also
gives States Parties the right to chemical weapons defenses, as
long as they are for purposes not prohibited under the
Convention. States Parties can choose the type of assistance
they wish to provide.
Article XI seeks to balance free trade in legitimate
chemicals with preventing the proliferation of chemical
weapons. This article sets the broad principle that the
Convention should not be implemented in a manner that hampers
the economic and technological development of States Parties or
international cooperation in chemical activities for purposes
not prohibited under the Convention.
Article XII sets forth general measures that may be taken
to address noncompliance. These measures include the
possibility of restricting or suspending a State Party's rights
and privileges, recommending sanctions, or bringing the issue
before the United Nations.
Article XIII states that nothing in the Convention shall
limit or detract from any obligations assumed by a State under
the Geneva Protocol of 1925 or the Biological Weapons
Convention.
Article XIV sets general mechanisms for settling disputes
between States Parties or between the States Parties and the
Organization.
Article XV provides two methods for modifying the
Convention: a formal amendment process and a ``simplified''
procedure for making minor administrative or technical changes
which is listed to most provisions of the Annexes. The former
requires ratification by States Parties without dissent and the
latter requires neither ratification nor consensus.
Article XVI states that the Convention shall be of
unlimited duration and sets forth the conditions for
withdrawal.
Article XVII states that the Annexes form an integral part
of the Convention and that any reference to the Convention
includes the Annexes. The purpose of this article is to make
clear that the Annexes have the same legal status as the
Articles to the Convention.
Article XVIII states that the Convention shall be open for
signature for all States before its entry into force in order
to allow for universal acceptance of the Convention.
Article XIX states that the Convention shall be subject to
ratification by States Signatories according to their
respective constitutional processes.
Article XX states that any State which does not sign the
Convention prior to its entry into force may sign it at any
time thereafter.
Article XXI sets the date for the Convention's entry into
force. This article specifies that the Convention shall enter
into force 180 days after the date of the deposit of the 65th
instrument of ratification, but not earlier than 2 years after
its opening for signature. Article XXI also specifies that the
States who sign the Convention after its entry into force, it
shall enter into force for that State on the 30th day following
the date of deposit of their instrument of ratification or
accession.
Article XXII states that the Articles of the Convention
shall not be subject to reservations by States Parties and that
any reservations to the Annexes must be compatible with the
object and purpose of the Convention.
Article XXIII designates the Secretary-General of the
United Nations as the depositary for the Convention and sets
forth the responsibilities of the depositary.
Article XXIV states that the Arabic, Chinese, English,
French, Russian, and Spanish texts of the Convention are all
equally authentic and shall be deposited with the Secretary-
General of the United Nations.
B. INTEGRAL ADDITIONAL DOCUMENTS
The Treaty includes other documents which the President and
the Secretary indicated are ``integral'' parts of the Treaty,
and are submitted for consideration as legally binding parts of
the Treaty.
The Annex on Chemicals sets forth the criteria by which
toxic chemicals and precursors are to be evaluated for
inclusion in the schedules and the three Schedules of chemicals
and chemical families themselves. The first part is designed so
that new or currently unknown chemicals that meet the criteria
may be proposed for addition to the Schedules in the future.
The annex states that these Schedules do not constitute a
definitive definition of chemical weapons. Schedule 1 is a list
of chemicals that have actually been developed, produced,
stockpiled or used as chemical weapons, chemicals that are
immediate precursors to such chemical weapons and all other
chemicals that are a high risk for use as chemical weapon
precursors and have not significant civilian use. Schedule 2
lists toxic chemicals and their immediate precursors that are
produced, typically in small quantities, for peaceful purposes
by industry, but which still pose a significant risk to the
objectives of the Convention because of their potential to be
used as chemical weapons. Schedule 3 lists chemicals that are
usually produced in large commercial quantities but which
either have been used in the past for chemical weapons or pose
a risk to the objectives of the Convention because of their
toxicity or importance as precursors to Schedule 1 or 2
chemicals.
The Annex on Implementation and Verification details how
the inspections are to be conducted by stating the guidelines
to be used in the declaration, monitoring, and inspection
provisions of the Convention. This annex includes definitions;
general rules of verification; general provisions for
verification measures for chemical weapons, chemical weapons
production facilities, and permitted Schedule 1 production;
specific provisions for destruction and verification of
destruction of chemical weapons; specific provisions for
destruction or conversion, and verification of destruction or
conversion, or chemical weapons production facilities; specific
provisions regarding permitted production and use of Schedule 1
chemicals; specific provisions for declaration and verification
of Schedule 2 and Schedule 3 chemicals and related facilities;
specific provisions for declaration and anticipated
verification of other chemical production facilities;
procedures for challenge inspections; and procedures for
investigations of alleged use on chemical weapons.
The Annex on the Protection of Confidential Information
obliges the Organization, the inspectors and the inspection
observers not to reveal information gathered in the course of
an inspection that is not relevant to a violation of the
Convention.
c. associated documents
Associated with the CWC are two separate document and three
annexes to the documents. The Resolution Establishing the
Preparatory Commission for the Organization for the Prohibition
of Chemical Weapons was adopted by the conference on
Disarmament at Geneva on September 3, 1992. The Resolution
approves the Text on the Establishment of a Preparatory
Commission. The Text on the Establishment of a Preparatory
Commission (and its Three Annexes) sets forth the details on
arranging the Preparatory Commission.
III. Treaty Obligations
destruction obligations
The Convention obligates each State Party to destroy all of
its chemical weapons, and chemical weapons it abandoned on the
territory of another State Party, and all of its chemical
weapons production facilities. The CWC outlines a destruction
schedule in specified categories of chemical weapons and
requires completion of the destruction process by 10 years
after the Convention's entry-into-force (EIF). The Convention
does allow flexibility in the destruction process, permitting
extension of the 10-year timeframe for up to 5 years.
The CWC identifies two special categories of chemical
weapons--namely old chemical weapons and abandoned chemical
weapons. All chemical weapons produced before 1925 may be
destroyed or otherwise disposed of as ``toxic waste.'' In the
case of ``old chemical weapons,'' the Executive Council of the
international organization created to implement the CWC can
modify time-limits and order of destruction for chemical
weapons produced between 1925 and 1946 that have deteriorated
to such an extent that they are no longer usable as chemical
weapons.
With regard to ``abandoned chemical weapons,'' the
abandoning State Party is required to provide all necessary
financial, technical, expert, facility and other resources to
ensure appropriate destruction or disposal. The 10-year
destruction time-line applies, through the Executive Council
may approve the modification or suspension of the time-limits
and/or order of destruction.
All chemical weapons that do not fall into these categories
will be subject to the full verification and destruction
regimes of the CWC. Chemical weapons are broadly defined by
Article II the CWC to be:
(a) Toxic chemicals--any chemical which through
chemical action on life processes can case death,
temporary incapacitation or permanent harm to humans or
animals--and their precursors, except when used for:
(i) Industrial, agricultural, research,
medical, pharmaceutical or other peaceful
purposes;
(ii) Purposes directly related to protection
against toxic chemicals and to protection
against chemical weapons;
(iii) Military purposes not connected with
the use of chemical weapons and not dependent
on the use of the toxic properties of chemicals
as a method of warfare; and
(iv) Law enforcement, including some domestic
riot control purposes.
(b) Munitions and devices specifically designed to
release toxic chemicals; and
(c) Any equipment specifically designed for use
directly in connection with the employment of those
munitions or devices.
The CWC also requires the destruction of chemical weapons
production facilities within 10 years of EIF. However, chemical
weapons production facilities may be converted temporarily for
use as destruction facilities. In addition, States Parties may
request approval from the Conference to convert chemical
weapons production facilities to purposes not prohibited under
the Convention. Approval is contingent on the State Party's
acceptance of conditions specified in the CWC which, inter
alia, preclude the use of a converted facility to produce,
process, or consume Schedule 1 or 2 chemicals (with some
exceptions), require the declaration of activities, provide for
international monitoring of such activities, and set parameters
for the conduct of such activities (e.g., very limited
production of Schedule 1 chemicals for protective purposes,
very limited Schedule 1 production capacity, and the use of
only two Schedule 1 production facilities for protective
purposes).
The CWC defines chemical weapons production facilities as
any equipment, or any building housing such equipment, that was
designed, constructed or used at any time since January 1,
1946:
(a) As part of the stage in the production of
chemicals where the material flows would contain, when
the equipment is in operation:
(i) Any Schedule 1 chemical; or
(ii) Any other chemical that has no use,
above 1 metric ton per year, for purposes not
prohibited under the Convention, but can be
used for chemical weapons purposes; or
(b) For filling chemical weapons, devices, or bulk
storage containers. This includes the filling of
chemicals into containers that form part of assembled
binary munitions/devices or into chemical submunitions
that form part of assembled unitary munitions/devices,
and the loading of the containers and chemical
submunitions into the respective munitions and devices.
The CWC specifically excludes from the definition of
``chemical weapons production facilities:'' (1) any facility
having a productive capacity of less than 1 metric ton; (2) any
facility in which a scheduled chemical is or was produced as an
avoidable by-product of activities for nonprohibited purposes
(provided that the chemical does not exceed 3% of the total
production at that facility and that the facility is subject to
CWC data declarations and inspection); or (3) the single small-
scale facility permitted for the production of chemicals listed
in Schedule 1 for nonprohibited purposes.
The Committee notes that regardless of whether any or all
specialized production equipment has been removed, prior to
entry into force of the Treaty, from a facility previously used
at anytime since January 1, 1946, for chemical weapons
production, such a facility must be declared pursuant to
Article III of the Treaty and Part V of the Verification Annex.
financial obligations
Article VIII of the CWC specifies that the costs of the
Organization for the Prohibition of Chemical Weapons (OPCW)
that will be established to implement the CWC be paid in
accordance with the United Nations scale of assessments
adjusted to take into account differences in membership between
the U.N. and the OPCW. According to Secretary of State Warren
Christopher's April 19, 1996, responses to questions asked by
the Chairman, the United States is expected to pay 24.96
percent of the OPCWs operating costs. The next five highest
contributors after the United States are expected to be Japan
(13.92 percent), Germany (8.93 percent), France (6.31 percent),
Russia (5.67 percent), and the United Kingdom (5.26 percent).
Each State Party must also pay for the costs of destruction
of its chemical weapons and for verification of the chemical
weapons storage and destruction process. However, the CWC also
allows for the conclusion of bilateral verification
arrangements under which the parties involved assume the
bilateral costs, and other members are apportioned percentages
of the cost of monitoring the bilateral agreement by the
international inspectorate. The United States proposed the
bilateral verification provision based on a desire for direct
involvement in monitoring the Russian chemical weapons
destruction effort, the pre-existence of the 1990 U.S.-Russian
Bilateral Destruction Agreement (BDA), and a mutual desire with
the Russian Federation to minimize costs where possible.
Obligations to Provide assistance under article X
The CWC obligates each State Party to provide either
monetary contributions to the Voluntary Fund of the OPCW,
contribute protective equipment to an OPCW stockpile, or to
identify assistance that will be provided upon demand or in
response to an appeal by the OPCW.
The PrepCom agreed in 1993 that the Voluntary Fund would
comprise monetary contributions from States Parties as well as
from nongovernmental organizations, institutions, private
parties, and individuals. Conditions on the use of these funds
would need to be consistent with the aims and purpose of the
Convention and approved by the Executive Council. The Voluntary
Fund is to be used for the creation, maintenance and periodic
replenishment of a stockpile of equipment for emergency
assistance.
In the case of an emergency request, each State Party has
the right to request and receive assistance, in general, if:
(1) chemical weapons have been used against it;
(2) riot control agents have been used against it as
a ``method of warfare;'' or
(3) it is threatened by the actions or activities of
any State that are prohibited under Article I.
The CWC defines assistance as ``the co-ordination and
delivery to States Parties of protection against chemical
weapons.'' Types of assistance are further defined inter alia
as detection equipment, alarm systems, protective equipment,
medical antidotes and treatments, decontamination equipment and
decontaminants, and advice on protective measures. The CWC
outlines procedures for requesting assistance and the ways in
which the OPCW should respond.
The Committee understands that, as a matter of practice,
any request for assistance will be submitted to the Director-
General who will then bring it to the attention of the
Executive Council and all States Parties. States Parties that
are so committed should be in a position to provide voluntary
emergency assistance within 12 hours of the receipt of such a
request. After the Director-General has initiated an
investigation, the Executive Council will meet and decide if
supplementary assistance should be provided. In cases where the
investigation is not finished, but it is obvious that chemical
weapons have been used, the Director-General may provide
emergency assistance by using the Voluntary Fund. Under such
circumstances, protective equipment from the OPCW's stockpile
can be dispatched and equipment from other donor States Parties
can be used.
Finally, Article X mandates that each State Party submit
annual information on its national chemical weapons defense
programs ``for purposes of increasing the transparency of
national programs related to protective purposes * * *.'' The
extent to which countries may be required to divulge
information about their defensive chemical programs is unclear,
and some on the Committee find this ambiguity troubling.
The Expert Group has discussed lists of categories of
information to be provided by States Parties on national
programs related to protective purposes. At this stage, the
Preparatory Commission for the OPCW conceptualizes mandatory
data to include information on the existence and general
elements of a national program, information on the training of
specialists in chemical weapons protection, and information on
protection units. However, final agreement has not been reached
on the extent of information to be provided.
creation and funding of the organizational bodies of the cwc
The Resolution Establishing the Preparatory Commission for
the Organization for the Prohibition of Chemical Weapons (OPCW)
and the Text on the Establishment of a Preparatory Commission
both were adopted by acclamation by Signatory States on January
13, 1993. Together they provide the basis for the Preparatory
Commission for the OPCW--the organization responsible for
preparing the necessary procedures for implementing the
Convention and for laying the groundwork for the international
organization created by the Convention.
The OPCW will consist of the following: the Conference of
the States Parties, the overall governing body made up of all
States Parties; a 41-member Executive Council; and the
Technical Secretariat, which will be the international body
responsible for actually conducting the verification
activities, including the on-site inspections.
creation of the national authority
In ratifying the Chemical Weapons Convention, a country
agrees to the basic provisions of the Convention in Article I,
and to implement those obligations by taking the necessary
national legal and administrative measures required by Article
VII. States Parties must provide the declarations and
information required under Articles I, IV, V and VI and this
information will be subject to the verification provisions of
these articles using the machinery of Article VIII. The State
Party also agrees to accept challenge inspection under Article
IX if the need arises.
While States Parties are required to take measures to
adhere to the Convention, Article VII is generally worded,
leaving it to individual States Parties to determine who they
will implement the provisions of the Convention and comply with
their obligations.
The primary function of the National Authority under the
Convention is to establish a system to meet the CWC's
obligations, and in so doing to minimize the disclosure of
confidential business information in the process of providing
information to the OPCW. Compliance with the CWC entails data-
reporting on scheduled chemicals, some unscheduled discrete
organic chemicals including ``PSF'' chemicals and on research
activities under the Convention. The National Authority will be
responsible for three different types of data reporting: (a)
the initial declarations of the State Party after entry into
force of the Convention, (b) annual data reporting and (c)
reporting on anticipated activities and changes in activities
reported previously. Such data must be retrievable, authorized,
and assessable at the National Authority level, and will
contain information on chemical trade (both export and import)
for chemical listed under the Schedules.
More specifically, a U.S. National Authority would be
required to:
(1) assess U.S. producers of chemicals of concern
under the Convention;
(2) process data declarations by firms under Articles
III, IV, V and VI;
(3) process annual declarations under Articles IV, V
and VI;
(4) escort OPCW inspection teams under Articles IV,
V, VI, IX and X;
(5) accredit OPCW Inspectors;
(6) develop Facility Agreements;
(7) oversee closure and destruction activities
relating to chemical weapons and chemical weapons
production facilities;
(8) coordinate the provision of national assistance
under Article X;
(9) analyze chemical export and import activities;
(10) review national regulations in international
trade in chemicals; and
(11) manage issues relating to old and abandoned
chemical weapons.
Beyond this, the National Authority will be called upon to
represent the United States at the Conference of States
Parties, the Executive Council, and to undertake other
activities. Thus the National Authority must have both a
domestic and an international focus.
IV. Background
In 1925, at the Geneva Conference for the Supervision of
the International Traffic in Arms, the United States proposed a
prohibition on the export of gases for use in war; France
broadened the proposal to include a ban on the use of poisonous
gas in war. At the suggestion of Poland, the proposed
prohibition was further extended to include bacteriological
weapons. The result was the 1925 Geneva Protocol, which
prohibits the use in war--though not internally, as in the
instance of Iraqi gassing of Kurds--of chemical and biological
weapons, but not the production or stockpiling of such weapons.
The Committee on Foreign Relations favorably reported the
treaty in 1926, but the Senate did not act on it in that
period.
In the post-World War II period, there were a number of
discussions of the possibility of multilateral chemical and
biological weapons bans, but no significant progress was made
until the late 1960's. In 1969, President Nixon announced that
he would resubmit the 1925 Geneva Protocol to the Senate. He
reaffirmed U.S. renunciation of first use of lethal chemical
weapons, as well as incapacitating chemicals.
In 1970, the President resubmitted the protocol with a
reservation that the United States could retaliate with
chemical weapons. He also declared that the protocol would not
apply to the use in war of riot-control agents and herbicides.
The Committee on Foreign Relations disagreed with the narrow
coverage and deferred action. 1971, the Soviets accepted the
U.S. view that a ban on biological weapons presented less
intractable problems and should not be held up awaiting
agreement in the Conference on Disarmament on a chemical
weapons ban. As a result, the Biological Weapons Convention was
negotiated quickly, opened for signature and submitted to the
Senate in 1972. The Senate Foreign Relations Committee deferred
action pending resolution of the U.S. commitment under the
Geneva Protocol.
In 1974, the Ford administration reopened the issue, and
the Director of the Arms Control and Disarmament Agency
indicated that the President, while reaffirming the scope of
the protocol, was prepared ``to renounce as a matter of
national policy: (1) first use of herbicides in war except use,
under regulations applicable to their domestic use, for control
of vegetation within U.S. bases and installations or around
their immediate defensive perimeters; and (2) first use of
riot-control agents in war except in defensive military modes
to save lives * * *.'' Moreover, Dr. Ikle, testified, ``The
President, under an earlier directive still in force, must
approve in advance any use of riot-control agents and chemical
herbicides in war.'' With that and related understandings, the
Senate Foreign Relations Committee voted unanimously 2 days
later to report the Convention and the protocol favorably. Four
days later, the Senate approved the protocol and the Convention
unanimously.
recent developments
In recent years, the issue of chemical weapons
proliferation has gained more immediacy as a result of a number
of allegations of chemical and biological weapons use. In the
mid 1960's, Egypt was accused of using chemical weapons with
Soviet help in the Yemeni civil war. North Vietnam was accused
of using chemical weapons and toxins in Laos and Cambodia. The
Ethiopian government was suspected of using chemicals against
rebels in 1980. The United States has also charged that the
Soviet Union used chemical weapons and toxins in Afghanistan.
However, the event which provoked the sharpest response
from the U.S. Congress was Iraq's repeated use of chemical
weapons in the Iran-Iraq War, prompting Iranian retaliation
with chemical weapons and use of poison gas against its own
Kurdish citizens in 1988. Congress responded by passing the
Pell-Helms Chemical and Biological Weapons Control and Welfare
Elimination Act, which imposed sanctions on nations using
chemical weapons and against companies aiding the chemical
weapons programs in certain countries. President Bush vetoed
the legislation in 1990, however, because it did not allow a
Presidential waiver of sanctions. The Bush administration
subsequently established controls and sanctions by Executive
order, but with complete leeway on waivers of penalties. The
legislation was passed again by Congress and became law in
1991.
Additionally, progress was made during the 1980's in
achieving international cooperation on nonproliferation issues.
In 1984, Vice President Bush introduced at the Conference on
Disarmament in Geneva a draft treaty calling for a
comprehensive ban with extensive verification procedures. In
the following years, a number of key issues were resolved, and
an early agreement in principle on the basic approach a ban
would take emerged. The Reagan administration had favored very
strict ``anytime, anywhere'' verification regime which the
Soviet Union ultimately accepted. While some argued that this
may constitute an unacceptable level of intrusiveness, further
negotiation to reach of common ground resulted in a
modification of the earlier approach and resulted in the
``managed access'' system of inspections.
In June 1990 Presidents Bush and Gorbachev signed a
bilateral Agreement on Destruction and Non-Production of
Chemical Weapons and on Measures to Facilitate the Multilateral
Convention on Banning Chemical Weapons. This agreement:
Banned the production of chemical weapons agents;
Required reduction in chemical weapons stocks to
5,000 tons by 2002, necessitating cuts of 83% in U.S.
stocks and 90% in Russian stocks;
Provided for on-site inspections of storage,
destruction and production facilities, combined with
data declarations.
In March 1993, the United States and Russian delegations
agreed ad referendum on detailed implementing procedures and
updated provisions to finalize the Bilateral Destruction
Agreement. Russia has yet to formally agree to these detailed
procedures and provisions, however, citing problems with the
provisions on conversion of former chemical weapons facilities
to peaceful uses and with the costs of stockpile destruction.
On the multilateral front, the late 1980's saw a slowdown
in progress on an international chemical weapons agreement, as
states debated the extensive verification procedures proposed
by the United States. Also, many nations opposed a U.S.-Soviet
formulation whereby those two countries could keep 500 tons of
chemical weapons for at least another 8 years, pending an
assessment of participation in the Convention.
The experience of the Gulf War, in which the United States
faced the possibility of chemical weapons attack, apparently
precipitated a change in the Bush administration's thinking in
the matter. The administration decided that the need for a
chemical weapons ban outweighed the need to maintain a chemical
retaliatory capability. Thus, the United States decided that in
the context of a multilateral convention, it would be willing
to abide by a total chemical weapons ban even if other
countries maintained chemical weapons stockpiles and programs.
This led to accelerated progress in multilateral talks. The
result was the opening for signature on January 13, 1993, of
The Convention on the Prohibition of Development Production,
Stockpiling and Use of Chemical Weapons and on Their
Destruction, or the Chemical Weapons Convention.
Signatories of the Chemical Weapons Convention Ratifications: 62 as of
9/6/96
Afghanistan
Albania--Ratified 5/11/94
Algeria--Ratified 8/14/95
Argentina--Ratified 10/2/95
Armenia--Ratified 1/27/95
Australia--Ratified 5/6/94
Austria--Ratified 8/17/95
Azerbaijan
Bahamas
Bahrain
Bangladesh
Belarus--Ratified 7/11/96
Belgium
Benin
Bolivia
Brazil--Ratified 3/13/96
Brunei Darussalem
Bulgaria--Ratified 8/10/94
Burkina Faso
Burundi
Cambodia
Cameroon
Canada--Ratified 9/26/95
Cape Verde
Central African Republic
Chad
Chile--Ratified 7/11/96
China
Colombia
Comoros
Congo
Cook Islands--Ratified 7/15/94
Costa Rica--Ratified 5/31/96
Cote d'Ivoire--Ratified 12/15/95
Croatia--Ratified 5/23/95
Cuba
Cyprus
Czech Republic--Ratified 3/6/96
Denmark--Ratified 7/13/95
Djibouti
Dominica
Dominican Republic
Ecuador--Ratified 9/6/95
El Salvador--Ratified 10/30/95
Equatorial Guinea
Estonia
Ethiopia--Ratified 5/24/96
Fiji--Ratified 1/20/93
Finland--Ratified 2/7/95
France--Ratified 3/2/95
Gabon
Gambia
Georgia--Ratified 11/27/95
Germany--Ratified 8/12/94
Ghana
Greece--Ratified 12/22/94
Guatemala
Guinea
Guinea-Bissau
Guyana
Haiti
Holy See
Honduras
Hungary
Iceland
India--Ratified 9/3/96
Indonesia
Iran
Ireland--Ratified 6/24/96
Israel
Italy--Ratified 12/8/95
Japan--Ratified 9/15/95
Kazakhstan
Kenya
Kuwait
Kyrgyzstan
Laos
Latvia--Ratified 7/23/96
Lesotho--Ratified 12/7/94
Liberia
Liechtenstein
Lithuania
Luxembourg
Madagascar
Malawi
Malaysia
Maldives--Ratified 5/31/94
Mali
Malta
Marshall Islands
Mauritania
Mauritius--Ratified 2/9/93
Mexico--Ratified 8/29/94
Micronesia
Moldova--Ratified 7/8/96
Monaco--Ratified 6/1/95
Mongolia--Ratified 1/17/95
Morocco--Ratified 12/28/95
Myanmar
Namibia--Ratified 11/27/95
Nauru
Nepal
Netherlands--Ratified 6/30/95
New Zealand--Ratified 7/15/96
Nicaragua
Niger
Nigeria
Norway--Ratified 4/7/94
Oman--Ratified 2/8/95
Pakistan
Panama
Papua New Guinea--Ratified 4/17/96
Paraguay--Ratified 23/1/94
Peru--Ratified 7/20/95
Philippines
Poland--Ratified 8/23/95
Portugal
Qatar
Romania--Ratified 2/15/95
Russian Federation
Rwanda
Saint Kitts and Nevis
Saint Lucia
Saint Vincent and
the Grenadines
Samoa
San Marino
Saudi Arabia--Ratified 8/9/96
Senegal
Seyechelles--Ratified 4/7/93
Sierra Leone
Singapore
Slovak Republic--Ratified 10/27/95
Slovenia
South Africa--Ratified 9/13/95
South Korea
Spain--Ratified 8/3/94
Sri Lanka--Ratified 8/19/94
Swaziland
Sweden--Ratified 6/17/93
Switzerland--Ratified 3/10/95
Tajikistan--Ratified 1/11/95
Tanzania
Thailand
Togo
Tunisia
Turkey
Turkmenistan--Ratified 9/29/94
Uganda
Ukraine
United Arab Emirates
United Kingdom--Ratified 5/13/96
United States
Uruguay--Ratified 10/6/94
Uzbekistan--Ratified 7/23/96
Venezuela
Viet Nam
Yemen
Zaire
Zambia
Zimbabwe
Total=160 Members.
Last updated: July 24, 1996.
V. Committee Action
Senator Pell chaired the first hearing on the Chemical
Weapons Convention on March 22, 1994, when the Committee heard
from the Honorable Warren Christopher, Secretary of State and
the Honorable John D. Holum, Director of the United States Arms
Control and Disarmament Agency. Additionally, Mr. Holum was
heard in closed session in the afternoon of March 22.
A second hearing was held on April 13, 1994. Witnesses
included the Honorable Stephen J. Ledogar, U.S. Representative
to the Conference on Disarmament; Sherry S. Mannix, Chairman,
Interagency Chemical Weapons Ratification Task Force and Former
Senior ACDA Representative to the U.S. Delegation to the
Conference on Disarmament; and Bernard L. Seward, Jr., Attorney
Advisor, U.S. Arms Control and Disarmament Agency and Former
Legal Advisor to the U.S. Conference on Disarmament.
A third hearing was held on May 13, 1994, with witnesses
from the Department of Defense. Witnesses included the
Honorable Walter B. Slocombe, Deputy Under Secretary for
Policy; Major General David W. McIlvoy, USAF, Deputy Director
for International Negotiations, Directorate for Strategic Plans
and Policy (J-5), Joint Chiefs of Staff; and Dr. Harold P.
Smith, Jr., Assistant to the Secretary of Defense for Atomic
Energy, Department of Defense.
On May 17, 1994, the Committee met briefly in open session
and moved to closed session with representatives of the
Intelligence Community. Witnesses included Major General
(retired) John Landry, USA, National Intelligence Officer for
General Forces, National Intelligence Council; John Lauder,
Chief, Arms Control Intelligence Staff for the Director of
Central Intelligence; and Donald Mahley, Acting Assistant
Director, Bureau of Multilateral Affairs, U.S. Arms Control and
Disarmament Agency.
On June 9, 1994, the Committee heard from several outside
experts. Witnesses included Will B. Carpenter, Chemical
Industry Consultant, Salt Lake City, Utah; Amoretta Hoeber,
Former Deputy Under Secretary of the Army, Arlington, Virginia;
Dr. Matthew Meselson, Department of Biochemistry and Molecular
Biology, Harvard University, Cambridge, Massachusetts; the
Honorable Michael Moodie, President, Chemical and Biological
Arms Control Institute, Alexandria, Virginia; the Honorable
Ronald F. Lehman, Former Director, United States Arms Control
and Disarmament Agency, Livermore, California; Frank Gaffney,
Jr., Director, Center for Security Policy, Washington, D.C.;
the Honorable Kathleen Bailey, Former Assistant Director,
United States Arms Control and Disarmament Agency, Livermore,
California; and Amy Smithson, Director, Chemical Weapons
Convention Implementation Project, Henry L. Stimson Center,
Washington, D.C.
On June 16, 1994, the Committee met in closed session to
hear Intelligence Community witnesses.
On June 23, 1994, the Committee met in open session with
General John M. Shalikashvili, Chairman of the Joint Chiefs of
Staff; the Honorable John D. Holum, Director, United States
Arms Control and Disarmament Agency; and the Honorable R. James
Woolsey, Director of Central Intelligence.
On March 13, 1996, the Committee held the first in the
final round of hearings. Witnesses include: Ms. Amoretta
Hoeber, President of AMH Consulting; Mr. Baker Spring, a Senior
Policy Analyst at the Heritage Foundation; The Honorable
Michael Moodie, President of the Chemical and Biological Arms
Control Institute; Dr. J.D. Crouch, professor of Defense and
Strategic Studies at Southwest Missouri State.
The Committee's eighth hearing was held on March 21, 1996.
Witnesses included: Dr. Brad Roberts, Defense Institute of
Analysis; Frederick Webber, President and CEO, Chemical
Manufacturers Association; The Honorable Kathleen Bailey,
Senior Fellow on the Staff of the Director at Lawrence
Livermore National Laboratory; Douglas J. Feith, Senior
Founding Partner of Feith and Zell, P.C.
On March 26, 1996, the Committee met in closed session to
hear Intelligence Community witnesses.
The final hearing was held on March 28, 1996. Witnesses
included: The Honorable Warren Christopher, Secretary of State;
The Honorable William Perry, Secretary of Defense; Lt. General
Wesley Clark, the Director of Strategic Plans and Policy in the
Office of the Chairman of the Joint Chiefs.
On April 25, 1996, the Senate Foreign Relations Committee
met for a business meeting, where among other things, the
Chemical Weapons Convention was on the agenda. The Chairman,
under an agreement reached during the State Department
Reorganization debate, introduced a resolution of ratification
for the Chemical Weapons Convention. A substitute offered by
Senator Lugar, Senator Pell, Senator Kassebaum, Senator Biden,
Senator Dodd, and Senator Kerry was agreed to by a vote of 12
to 6. Senator Lugar, Senator Kassebaum, Senator Snowe, Senator
Thomas, Senator Pell, Senator Biden, Senator Sarbanes, Senator
Dodd, Senator Kerry, Senator Robb, Senator Feingold, and
Senator Feinstein voted in favor of the substitute. Chairman
Helms, Senator Brown, Senator Coverdell, Senator Thompson,
Senator Grams, and Senator Ashcroft voted against the
substitute. On the question of reporting the Chemical Weapons
Convention to the full Senate, the committee voted in favor, by
a vote of 13 to 5. Senator Lugar, Senator Kassebaum, Senator
Snowe, Senator Thompson, Senator Thomas, Senator Pell, Senator
Biden, Senator Sarbanes, Senator Dodd, Senator Kerry, Senator
Robb, Senator Feingold, and Senator Feinstein voted in favor of
reporting the Convention to the full Senate. Chairman Helms,
Senator Brown, Senator Coverdell, Senator Grams, and Senator
Ashcroft voted against the Convention's report to the full
Senate.
The substitute resolution of ratification adopted was the
result of a bi-partisan effort to report a resolution of
ratification to the full Senate which if approved by a two-
thirds majority would allow U.S. instruments of ratification to
be deposited and U.S. participation in the Convention. The
substitute received the support of the Administration. The
resolution of ratification was submitted to the Senate on April
30, 1996, pursuant to a unanimous consent agreement entered
into on December 7, 1995.
VI. Resolution of Ratification
1. Resolution of Ratification
Resolved (two-thirds of the Senators present concurring
therein), That (a) the Senate advise and consent to the
ratification of the Convention on the Prohibition of
Development, Production, Stockpiling and Use of Chemical
Weapons and on their Destruction, opened for signature and
signed by the United States at Paris on January 13, 1993,
including the following annexes and associated documents, all
such documents being integral parts of and collectively
referred to in this resolution as the ``Convention'' (contained
in Treaty Document 103-21), subject to the conditions of
subsection (b) and the declarations of subsection (c):
(1) The Annex on Chemicals.
(2) The Annex on Implementation and Verification
(also known as the ``Verification Annex'').
(3) The Annex on the Protection of Confidential
Information (also known as the ``Confidentiality
Annex'').
(4) The Resolution Establishing the Preparatory
Commission for the Organization for the Prohibition of
Chemical Weapons.
(5) The Text on the Establishment of a Preparatory
Commission.
(b) Conditions.--The advice and consent of the Senate to
the ratification of the Convention is subject to the following
conditions, which shall be binding upon the President:
(1) Amendment conferences.--The United States will be
present and participate fully in all Amendment
Conferences and will cast its vote, either
affirmatively or negatively, on all proposed amendments
made at such conferences, to ensure that--
(A) the United States has an opportunity to
consider any and all amendments in accordance
with its Constitutional processes; and
(B) no amendment to the Convention enters
into force without the approval of the United
States.
(2) Presidential certification on data
declarations.--(A) Not later than 10 days after the
Convention enters into force, or not later than 10 days
after the deposit of the Russian instrument of
ratification of the Convention, whichever is later, the
President shall either--
(i) certify to the Senate that Russia has
complied satisfactorily with the data
declaration requirements of the Wyoming
Memorandum of Understanding; or
(ii) submit to the Senate a report on
apparent discrepancies in Russia's data under
the Wyoming Memorandum of Understanding and the
results of any bilateral discussions regarding
those discrepancies.
(B) For purposes of this paragraph, the term
``Wyoming Memorandum of Understanding'' means the
Memorandum of Understanding Between the Government of
the United States of America and the Government of the
Union of Soviet Socialist Republics Regarding a
Bilateral Verification Experiment and Data Exchange
Related to Prohibition on Chemical Weapons, signed at
Jackson Hole, Wyoming, on September 23, 1989.
(3) Presidential certification on the bilateral
destruction agreement.--Before the deposit of the
United States instrument of ratification of the
Convention, the President shall certify in writing to
the Senate that--
(A) a United States-Russian agreement on
implementation of the Bilateral Destruction
Agreement has been or will shortly be
concluded, and that the verification procedures
under that agreement will meet or exceed those
mandated by the Convention, or
(B) the Technical Secretariat of the
Organization for the Prohibition of Chemical
Weapons will be prepared, when the Convention
enters into force, to submit a plan for meeting
the Organization's full monitoring
responsibilities that will include United
States and Russian facilities as well as those
of other parties to the Convention.
(4) Noncompliance.--If the President determines that
a party to the Convention is in violation of the
Convention and that the actions of such party threaten
the national security interests of the United States,
the President shall--
(A) consult with, and promptly submit a
report to, the Senate detailing the effect of
such actions on the Convention;
(B) seek on an urgent basis a meeting at the
highest diplomatic level with the Organization
for the Prohibition of Chemical Weapons (in
this resolution referred to as the
``Organization'') and the noncompliant party
with the objective of bringing the noncompliant
party into compliance;
(C) in the event that a party to the
Convention is determined not to be in
compliance with the Convention, request
consultations with the Organization on whether
to--
(i) restrict or suspend the
noncompliant party's rights and
privileges under the Convention until
the party complies with its
obligations;
(ii) recommend collective measures in
conformity with international law; or
(iii) bring the issue to the
attention of the United Nations General
Assembly and Security Council; and
(D) in the event that noncompliance
continues, determine whether or not continued
adherence to the Convention is in the national
security interests of the United States and so
inform the Senate.
(5) Financing implementation.--The United States
understands that in order to ensure the commitment of
Russia to destroy its chemical stockpiles, in the event
that Russia ratifies the Convention, Russia must
maintain a substantial stake in financing the
implementation of the Convention. The costs of
implementing the Convention should be borne by all
parties to the Convention. The deposit of the United
States instrument of ratification of the Convention
shall not be contingent upon the United States
providing financial guarantees to pay for
implementation of commitments by Russia or any other
party to the Convention.
(6) Implementation arrangements.--If the Convention
does not enter into force or if the Convention comes
into force with the United States having ratified the
Convention but with Russia having taken no action to
ratify or accede to the Convention, then the President
shall, if he plans to implement reductions of United
States chemical forces as a matter of national policy
or in a manner consistent with the Convention--
(A) consult with the Senate regarding the
effect of such reductions on the national
security of the United States; and
(B) take no action to reduce the United
States chemical stockpile at a pace faster than
that currently planned and consistent with the
Convention until the President submits to the
Senate his determination that such reductions
are in the national security interests of the
United States.
(7) Presidential certification and report on national
technical means.--Not later than 90 days after the
deposit of the United States instrument of ratification
of the Convention, the President shall certify that the
United States National Technical Means and the
provisions of the Convention on verification of
compliance, when viewed together, are sufficient to
ensure effective verification of compliance with the
provisions of the Convention. This certification shall
be accompanied by a report, which may be supplemented
by a classified annex, indicating how the United States
National Technical Means, including collection,
processing and analytic resources, will be marshalled,
together with the Convention's verification provisions,
to ensure effective verification of compliance. Such
certification and report shall be submitted to the
Committee on Foreign Relations, the Committee on
Appropriations, the Committee on Armed Services, and
the Select Committee on Intelligence of the Senate.
(c) Declarations.--The advice and consent of the Senate to
ratification of the Convention is subject to the following
declarations, which express the intent of the Senate:
(1) Treaty interpretation.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the Resolution of Ratification with
respect to the INF Treaty, approved by the Senate on
May 27, 1988. For purposes of this declaration, the
term ``INF Treaty'' refers to the Treaty Between the
United States of America and the Union of Soviet
Socialist Republics on the Elimination of Their
Intermediate-Range and Shorter Range Missiles, together
with the related memorandum of understanding and
protocols, approved by the Senate on May 27, 1988.
(2) Further arms reduction obligations.--The Senate
declares its intention to consider for approval
international agreements that would obligate the United
States to reduce or limit the Armed Forces or armaments
of the United States in a militarily significant manner
only pursuant to the treaty power set forth in Article
II, Section 2, Clause 2 of the Constitution.
(3) Retaliatory policy.--The Senate declares that the
United States should strongly reiterate its retaliatory
policy that the use of chemical weapons against United
States military forces or civilians would result in an
overwhelming and devastating response, which may
include the whole range of available weaponry.
(4) Chemical defense program.--The Senate declares
that ratification of the Convention will not obviate
the need for a robust, adequately funded chemical
defense program, together with improved national
intelligence capabilities in the nonproliferation area,
maintenance of an effective deterrent through capable
conventional forces, trade-enabling export controls,
and other capabilities. In giving its advice and
consent to ratification of the Convention, the Senate
does so with full appreciation that the entry into
force of the Convention enhances the responsibility of
the Senate to ensure that the United States continues
an effective and adequately funded chemical defense
program. The Senate futher declares that the United
States should continue to develop theater missile
defense to intercept ballistic missiles that might
carry chemical weapons and should enhance defenses of
the United States Armed Forces against the use of
chemical weapons in the field.
(5) Enforcement policy.--The Senate urges the
President to pursue compliance questions under the
Convention vigorously and to seek international
sanctions if a party to the Convention does not comply
with the Convention, including the ``obligation to make
every reasonable effort to demonstrate its compliance
with this Convention'', pursuant to paragraph 11 of
Article IX. It should not be necessary to prove the
noncompliance of a party to the Convention before the
United States raises issues bilaterally or in
appropriate international fora and takes appropriate
actions.
(6) Approval of inspectors.--The Senate expects that
the United States will exercise its right to reject a
proposed inspector or inspection assistant when the
facts indicate that this person is likely to seek
information to which the inspection team is not
entitled or to mishandle information that the team
obtains.
(7) Assistance to Russia.--The Senate declares that,
if the United States provides limited financial
assistance for the destruction of Russian chemical
weapons, the United States should, in exchange for such
assistance, require Russia to destroy its chemical
weapons stocks at a proportional rate to the
destruction of United States chemical weapons stocks
and to take the action before the Convention deadline.
In addition, the Senate urges the President to request
Russia to allow inspections of former military
facilities that have been converted to commercial
production, given the possibility that these plants
could one day be reconverted to military use, and that
any United States assistance for the destruction of the
Russian chemical stockpile be apportioned according to
Russia's openness to these broad based inspections.
(8) Expanding chemical arsenals in countries not
party to the chemical weapons convention.--It is the
sense of the Senate that, if during the time the
Convention remains in force the President determines
that there has been an expansion of the chemical
weapons arsenals of any country not a party to the
Convention so as to jeopardize the supreme national
interests of the United States, then the President
should consult on an urgent basis with the Senate to
determine whether adherence to the Convention remains
in the national interest of the United States.
(9) Compliance.--Concerned by the clear pattern of
Soviet noncompliance with arms control agreements and
continued cases of noncompliance by Russia, the Senate
declares the following:
(A) The Convention is in the interest of the
United States only if both the United States
and Russia, among others, are in strict
compliance with the terms of the Convention as
submitted to the Senate for its advice and
consent to ratification, such compliance being
measured by performance and not by efforts,
intentions, or commitments to comply.
(B)(i) Given its concern about compliance
issues, the Senate expects the President to
offer regular briefings, but not less than
several times a year, to the Committees on
Foreign Relations and Armed Services and the
Select Committee on Intelligence of the Senate
on compliance issues related to the Convention.
Such briefings shall include a description of
all United States efforts in diplomatic
channels and bilateral as well as the
Multilateral Organization fora to resolve the
compliance issues and shall include, but not
necessarily be limited to a description of--
(I) any compliance issues, other than
those requiring challenge inspections,
that the United States plans to raise
with the Organization; and
(II) any compliance issues raised at
the Organization, within 30 days.
(ii) Any Presidential determination that
Russia is in noncompliance with the Convention
shall be transmitted to the committees
specified in clause (i) within 30 days of such
a determination, together with a written
report, including an unclassified summary,
explaining why it is in the national security
interests of the United States to continue as a
party to the Convention.
(10) Submission of future agreements as treaties.--
The Senate declares that after the Senate gives its
advice and consent to ratification of the Convention,
any agreement or understanding which in any material
way modifies, amends, or reinterprets United States and
Russian obligations, or those of any country, under the
Convention, including the time frame for implementation
of the Convention, should be submitted to the Senate
for its advice and consent to ratification.
(11) Riot control agents.--(A) The Senate,
recognizing that the Convention's prohibition on the
use of riot control agents as a ``method of warfare''
precludes the use of such agents against combatants,
including use for humanitarian purposes where
combatants and noncombatants intermingled, urges the
President--
(i) to give high priority to continuing
efforts to develop effective nonchemical,
nonlethal alternatives to riot control agents
for use in situations where combatants and
noncombatants are intermingled; and
(ii) to ensure that the United States
actively participates with other parties to the
Convention in any reassessment of the
appropriateness of the prohibition as it might
apply to such situations as the rescue of
downed air crews and passengers and escaping
prisoners or in situations in which civilians
are being used to mask or screen attacks.
(B) For purposes of this paragraph, the term ``riot
control agents'' is used within the meaning of Article
II (4) of the Convention.
2. Description of the Resolution of Ratification
Article XXII states that the Articles of the Convention are
not subject to reservations. The Committee has expressed the
view that the President's agreement to such a prohibition
cannot constrain the Senate's constitutional right and
obligation to give its advice and consent to a treaty subject
to any reservation it might determine is required by the
national interest. This principle must apply even if the Senate
agrees to treaties when no reservations are necessary.
The Annexes of the Convention are subject to reservations,
as long as they are not incompatible with the object and
purpose of the Convention. The Administration has informed the
Senate that Article XXII represents a compromise between
countries that wanted no reservations and the United States,
which wanted to preserve the rights of the executive and
legislative branches to make reservations. This compromise
reflects the position of most countries that the basic
requirements of the Convention, which are found in the
Articles, should not be subject to reservations. The Annexes,
however, contain detailed implementation measures which may not
be suitable or necessary for all countries. Reservations to the
Annexes, therefore, should be allowed, unless they contradict
the object and purpose of the Convention.
Although the Senate may accede to the President's request
not to make its advice and consent to this Convention subject
to a reservation, the Senate is still in a position to give its
declarations or provisions as it might deem necessary, short of
a reservation that would be deemed a change in specific U.S.
obligations.
The first condition of the substitute resolution of
ratification responds to paragraph 3 of Article XV of the
Convention. It states that ``3. Amendments shall enter into
force for all States Parties 30 days after deposit of the
instruments of ratification or acceptance by all the States
parties referred to under subparagraph (b) below: (a) When
adopted by the Amendment Conference by a positive vote of a
majority of all States Parties with no State Party casting a
negative vote; and (b) Ratified or accepted by all those States
parties casting a positive vote at the Amendment Conference.''
Pursuant to this provision, if the United States were to
abstain, or simply not to vote, when a matter was decided in
the Amendment Conference, it could be possible for an amendment
to be adopted without being submitted to the Senate for advice
and consent--or, indeed, over the objection of the Senate. By
contrast, a U.S. vote in favor of an amendment would make U.S.
ratification a precondition to entry into force--and a U.S.
vote against an amendment would defeat the proposal before any
States Parties could ratify it.
The Executive Branch provided the Senate with the following
assurance:
On this point, it should be stressed that the United
States will be present at all Amendment Conferences and
will cast its vote, either positive or negative, on all
proposed amendments made at such conferences, thus
ensuring the opportunity for the Senate to consider any
amendment approved by the Amendment Conference.
The Executive Branch's assurance is intended to remove any
concern regarding the constitutional role of the Senate. The
Committee on Foreign Relations would make the Senate's consent
to ratification of the Chemical Weapons Convention conditioned
upon a binding obligation upon the President to abide by this
commitment.
Condition 2. In the Wyoming Memorandum of Understanding
(MOU) of September 23, 1989, the Soviet Union and the United
States agreed to ``conduct a bilateral verification experiment
and data exchange related to the prohibition of chemical
weapons.'' This agreement was to be carried out in two phases.
In Phase I, the sides agreed to ``exchange general data on
their chemical weapons capabilities and carry out a series of
visits to relevant facilities.'' In Phase II, the sides agreed
to ``exchange detailed data and perform on-site inspections to
verify the accuracy of those data.'' The overall intent of the
Wyoming MOU was ``to facilitate the process of negotiation,
signature and ratification of a comprehensive, effectively
verifiable and truly global convention on the prohibition and
destruction of chemical weapons.''
Pursuant to the Wyoming MOU, the United States and the
Soviet Union signed on June 1, 1990, an ``Agreement on
Destruction and Non-Production of Chemical Weapons and on
Measures to Facilitate the Multilateral Convention on Banning
Chemical Weapons'' (known as the Bilateral Destruction
Agreement or BDA).
When the Wyoming MOU and the BDA were signed, there was
still a Soviet Union. There was little expectation that a
Chemical Weapons Convention could be negotiated in the near
term. Today, there is no Soviet Union but there is a Chemical
Weapons Convention. To the extent, however, that Russia impedes
the implementation of the Wyoming MOU and the Bilateral
Destruction Agreement or submits questionable data
declarations, her good faith must be questioned.
Data Declarations under the Wyoming MOU. Phase I of the
Wyoming MOU appears to have been carried out as planned. The
Phase II data exchange, which should have occurred in the
spring of 1992, did not take place until fully 2 years later,
pursuant to implementing procedures that were agreed in Moscow
on January 14, 1994. A review of the Russia's Wyoming MOU Phase
I and Phase II data declarations suggests significant
shortcomings in those declarations. Those shortcomings account
for the Committee's concern over Russia's failure to comply
fully with the data declaration provisions of the Wyoming MOU
and its implementing procedures.
Moreover, the failure to implement all the on-site
inspections originally agreed to in the Wyoming MOU is another
cause of concern. The inspections under Phase II of the MOU are
no longer likely to make a significant contribution to
compliance monitoring or verification. Rather, as pared down in
1993 and in the final implementing procedures, they will
continue the confidence-building process and help the two sides
prepare for later inspections under the Bilateral Destruction
Agreement and/or the Chemical Weapons Convention. But the
Russian refusal to permit a full suite of technical inspection
equipment, even after most inspections and all challenge
inspections or nondeclared sites were eliminated, suggests the
Russians may have something to hide.
The Committee believes that the President must make full
Russian implementation of the Wyoming MOU and the Bilateral
Destruction Agreement an issue of high priority in U.S.-
Russian relations and must raise the matter personally at the
highest levels. Therefore, the committee has added a condition
to the resolution of ratification of the CWC requiring the
President, 10 days after the CWC enters into force or 10 days
after the Russian Federation deposits instruments of
ratification of the CWC, whichever is later, either (A) to
certify to the Senate that the Russian Federation has complied
satisfactorily with the data declaration requirements of the
Wyoming Memorandum of Understanding; or (B) to submit to the
Senate a report on apparent discrepancies in the Russian
Federation's Wyoming Memorandum of Understanding data and the
results of any bilateral discussions regarding those
discrepancies.
Condition 3. The Bilateral Destruction Agreement (BDA) of
1990 calls for the immediate cessation of CW production, for
the destruction by December 31, 2002, of all U.S. and Russian
chemical weapons except for up to 5,000 metric tons, and, if
the CWC should enter into force, for destruction of all but 500
metric tons within 8 years of that date--reflecting the U.S.
negotiating position as of 1990. The BDA also mandates annual
updates to the 1989 Wyoming MOU data exchange.
At the time the BDA was signed, there was no exception that
in just over 2 years the Chemical Weapons Convention would be
initialed. The BDA was intended to set a good example for the
rest of the world, to move the CWC negotiations along, and to
mesh with a CWC that had not yet been completed. To deal with a
future CWC, the Parties adopted Paragraph 1 of Article VIII of
the BDA that reads:
After the multilateral convention enters into force,
the provisions of the multilateral convention shall
take precedence over the provisions of this Agreement
(the BDA) in cases of compatible obligations therein.
Otherwise, the provisions of the (BDA) Agreement shall
supplement the provisions of the multilateral
convention in its operation between the Parties. After
the multilateral convention is signed, the Parties to
this (BDA) Agreement shall consult with each other in
order to resolve any questions concerning the
relationship of this (BDA) Agreement to the
multilateral convention.
However, Russia has yet to agree to a date for further
bilateral negotiations on BDA implementation. Given the passage
of more than 3 years since Russia and the United States reached
agreement ad referendum on BDA implementation, and given the
fact that the BDA mandates extensive on-site inspection by U.S.
personnel, there is a real risk that the BDA will never enter
into force, notwithstanding Russia's economic incentive to
accept bilateral verification.
In the absence of agreement on BDA implementation,
verification of Russian compliance would likely be based upon a
smaller number of inspections than originally anticipated, that
the inspections of Russian sites would be conducted by the OPCW
inspectorate rather than by U.S. personnel, and there would be
no guaranteed U.S. access to the detailed inspection data. On
the other hand, the OPCW is unlikely to exempt Russia from the
requirements set forth in the CWC's provisions.
OPCW budget planning has proceeded on the assumption that
the United States and the Russian Federation would handle the
bulk of the monitoring of each other's CWC facilities. If the
BDA should not come into force by the time the CWC comes into
force, then the Technical Secretariat of the OPCW might not be
able to field enough international inspectors to handle this
significant task. At minimum, OPCW planning assumptions may
need to be revised so that the organization can prepare for the
possible need to monitor U.S. and Russian CW facilities.
Therefore, the Committee has added a condition to the
resolution of ratification of the CWC, barring the deposit of
the instruments of ratification until the President certifies
to Congress either (A) that the U.S.-Russian agreement on
implementation of the Bilateral Destruction Agreement has been
or will shortly be achieved, and that the agreed verification
procedures will meet or exceed those mandated by the Chemical
Weapons Convention; or (B) that the Technical Secretariat of
the Organization for the Prohibition of Chemical Weapons will
be prepared, when the Convention enters into force, to submit a
plan for meeting the organization's full monitoring
responsibilities that will include U.S. and Russian facilities
as well as those of other States Parties.
Condition 4. The enforcement of arms control agreements
serves two basic functions: it is essential to the correction
of violations, be they inadvertent or intentional; and it can
serve to deter potential violators, by establishing a real
penalty for noncompliance. The penalty for noncompliance may be
tangible or largely political--i.e., public exposure of the
violator. But without some penalty, deterrence is minimal and
enforcement can at best correct those violations that the
international community happens to discover. Without the will
to enforce an agreement in the face of violations, moreover, an
agreement can gradually or precipitously lose its force.
The basic enforcement powers of the OPCW are set forth in
Article XII of the Convention. But collective measures in
defense of the CWC will likely require both firm OPCW
leadership and strong support from the major powers.
Specifically, it is hard to imagine any such collective
measures being adopted unless the United States asserts itself
to build the necessary consensus for such action.
The Committee believes that the deterrent effect of the CWC
is extremely difficult to predict. Countries that are uncertain
about the value of chemical weapons may well be both reassured
by wide ratification of the CWC and loath to risk discovery of
a CW posture that they see as providing only marginal gain.
Given the nature and secrecy of many of the states of greatest
concern, however, the CWC may not deter those most committed to
having an offensive CW capability, although it will likely be
more effective in deterring the actual use of chemical weapons.
The Committee also believes that a strong U.S. commitment
to the enforcement of the CWC will be essential to the
effectiveness of the Convention. It may, in fact, be possible
to achieve a measure of both enforcement and deterrence, but
only if the United States is prepared to make compliance with
the CWC a major element of its foreign policy stance toward
each State Party to the Convention.
Therefore, the Committee has added a condition to the
resolution of ratification of the CWC that establishes the
framework by which the President may seek to bring a
noncompliant Party into compliance and, failing that, the
President's actions with respect to determining whether
continued adherence to the CWC remains in the national security
interests of the United States.
Condition 5. There is inevitably a tension between the
desire to maintain the best possible monitoring and
verification capabilities and the need to limit expenditures
and enforce budget discipline on international organizations to
which the United States contributes. The OPCW has not been
immune to this cost-benefit dilemma. Questions have been raised
regarding the OPCW budget, and these are legitimate in light of
the U.S. agreement to cover 25% of that budget.
By the same token, the Executive Branch believes that there
are major economic incentives for the Russians to implement the
Bilateral Destruction Agreement, since the United States would
contribute funds for CW destruction under that agreement.
Indeed, various Russian officials have argued that the rest of
the world should share in the cost of Russian CW destruction,
as they will share in the security benefits which flow from
such destruction.
The United States has agreed to provide assistance to the
Russian chemical weapons destruction program, including the
provision of a U.S. contractor to aid in the development of a
comprehensive destruction plan and the equipping of a central
analytical laboratory for monitoring to ensure safe destruction
activities. Moreover, the Russian government has asked that
additional support focus on efforts to develop one or two
nerve-agent destruction facilities.
Notwithstanding such limited U.S. assistance and the
Committee view that the BDA may never enter into force, despite
Russia's economic incentive to accept bilateral verification,
the Committee believes that in order to ensure Russian
commitment to destruction of its chemical stockpiles, Russia
must maintain a substantial stake in financing the
implementation of the CWC and share a substantial portion--if
not all--of the burden of Russian implementation of the CWC.
Therefore, the Committee has added a condition to the
resolution of ratification of the CWC that the deposit of the
instruments of ratification of the CWC shall not be contingent
upon the United States providing financial guarantees to pay
for implementation of commitments by Russia and other States
Parties under the Convention.
Condition 6. This instructs the President that if the CWC
does not come into force or it comes into force with the U.S.
having ratified the Treaty but Russia having taken no action,
and the President plans to implement U.S. chemical reductions
anyway, he must consult with the Senate. He can take no action
to reduce the U.S. stockpile at a pace faster than currently
planned and consistent with the CWC until he submits to the
Senate his determination that such reductions are in the
national security interests of the United States. This
provision allows the Administration to meet its CW destruction
obligation in full consultation with the Senate.
Condition 7. The United States will rely upon a combination
of capabilities--including imagery, signals intelligence, human
intelligence, open-source information, and the verification
provisions of the CWC. Monitoring the CWC will be a difficult
task and the Intelligence Community has poor confidence in its
ability to monitor the most stressing aspects of the CWC for
three primary reasons:
the large number of sites worldwide involved in
chemical production subject to the Convention;
most of the products and production facilities
subject to the agreement are dual-use, with legitimate
commercial applications; and
most activity prohibited by the CWC is easily
concluded or disguised.
Nonetheless, the Intelligence Community has testified that
the CWC is a net plus in its efforts to assess and warn of
potential chemical warfare threats to the United States and
that the accumulation of data provided by the OPCW over the
years will assist in its monitoring tasks.
The Committee shares the view with the Arms Control and
Disarmament Agency that the verification provisions of the CWC,
in combination with national intelligence means are
insufficient to detect, with a high degree of confidence, all
activities prohibited under the Convention. Nonetheless, the
larger and more systematic the violations, the higher the
possibility that, over time, evidence of these would surface.
The existence of a program with the scope and size of the
former Soviet Union's would be difficult to completely conceal
under the Convention. Thus, the Committee does not believe that
a single-all-encompassing judgment can be made regarding the
verifiability of the CWC or U.S. capability to monitor
compliance with the Convention. In some areas, our confidence
will be significantly higher than others. However, the
Committee accepts the Intelligence Community's pessimistic
assessment of U.S. capability to detect and identify a
sophisticated and determined violation of the Convention,
especially on a small scale.
For that reason, the Committee has added a condition to the
resolution of ratification of the CWC requiring the president,
within 90 days of depositing the instruments of ratification,
to certify that a combination of U.S. National Technical Means
and the verification provisions of the Convention itself are
sufficient to ensure effective verification of compliance with
the provisions of the Treaty. That certification shall be
accompanied by a report indicating how U.S. National Technical
Means, including collection, processing. and analytical
resources, will be marshaled in combination with the
Convention's verification provisions.
Declaration 1 is an affirmation of Condition 1 of the INF
Treaty Resolution of Ratification.
Declaration 2 is a statement of the intention of the Senate
to continue to reduce the Armed Forces or armaments of the
United States in a manner pursuant to the Constitution.
Declaration 3 states the U.S. Senate's policy to respond to
chemical weapons use on U.S. troops or civilians with an
overwhelming and devastating response, which may include the
whole range of available weaponry.
Declaration 4 states the Senate's view that the U.S. must
continue to field a robust, adequately funded chemical defense
program, combined with improved national intelligence
capabilities. The Senate states the United States should
continue to develop missile theater defense.
Declaration 5 urges the President to seek sanctions
bilaterally or in appropriate international fora if a state
party does not abide by the Convention.
Declaration 6 states the Senate's expectation that the U.S.
will exercise its right to reject a proposed inspector or
inspection assistant when there is an indication that the
person is seeking information the inspection team is not
entitled or to mishandle information that the team obtains.
Declaration 7 states that if the U.S. provides assistance
to Russia for chemical weapon destruction the U.S. should, in
exchange for such assistance, require Russia to destroy stocks
at a proportional rate to U.S. destruction, and before the CWC
deadline. The Senate also urges the U.S. to require inspections
of former Russian military facilities that have been converted
to commercial production, given the possibility that these
plants could be reconverted, and U.S. assistance should be
apportioned to Russia's openness to these broad-based
inspections.
Declaration 8 states that if the President at any time
while the CWC is in force determines the supreme national
interests of the United States are in jeopardy due to an
expansion of the chemical weapons arsenals of any country not
party to the CWC, the President should consult with the Senate
to determine whether adherence to the CWC remains in the
national security interests of the United States.
Declaration 9 states that the CWC is in the interest of the
United States only if both the United States and Russia, among
others, are in strict compliance. The Senate expects Russia,
among others, to be in strict compliance with the CWC. The
Senate Foreign Relations Committee, the Senate Armed Services
Committee and the Senate Select Committee on Intelligence are
to be offered regular briefings on compliance issues including:
challenge inspections, compliance issues raised at the OPCW
within 30 days, and any Presidential determination that Russia
is in noncompliance.
Declaration 10 states that any agreement or understanding
to the CWC which modifies, amends, or reinterprets U.S.,
Russian, or any other state's obligations should be submitted
to the Senate for its advice and consent to ratification.
Declaration 11 urges the President to give high priority to
continuing efforts to develop effective non-chemical, non-
lethal alternatives to riot control agents. The Senate urges
the President to ensure that the United States actively
participates with other Parties to the Convention in any
reassessment of the appropriateness of the prohibition as it
might apply to such situation as the rescue of downed air crews
and passengers and escaping prisoners or in situations in which
civilians are being used to mask or screen attacks.
VII. Article-by-Article Analysis of the Convention on the Prohibition
of the Development, Production, Stockpiling and Use of Chemical Weapons
and on Their Destruction
table of contents
Page
Preamble......................................................... 36
Articles
I. General Obligations............................................37
II. Definitions and Criteria.......................................37
III. Declarations...................................................39
IV. Chemical Weapons...............................................41
V. Chemical Weapons Production Facilities.........................43
VI. Activities not Prohibited Under this Convention................46
VII. National Implementation Measures...............................47
VIII. The Organization...............................................48
IX. Consultations, Cooperation and Fact-Finding....................56
X. Assistance and Protection Against Chemical Weapons.............60
XI. Economic and Technological Development.........................62
XII. Measures to Redress a Situation and to Ensure Compliance,
including Sanctions............................................62
XIII. Relation to Other International Agreements.....................63
XIV. Settlement of Disputes.........................................63
XV. Amendments.....................................................64
XVI. Duration and Withdrawal........................................65
XVII. Status of the Annexes..........................................66
XVIII.Signature......................................................66
XIX. Ratification...................................................66
XX. Accession......................................................66
XXI. Entry into Force...............................................66
XXII. Reservations...................................................66
XXIII.Depositary.....................................................66
XXIV. Authenic Texts................................................67
Annex on chemicals
A. Guidelines for schedules of chemicals:
Guidelines for Schedule 1.................................... 67
Guidelines for Schedule 2.................................... 67
Guidelines for Schedule 3.................................... 67
B. Schedules of chemicals:
Guidelines for Schedule 1.................................... 68
Guidelines for Schedule 2.................................... 69
Guidelines for Schedule 3.................................... 69
Annex on implementation and verification (``verification
annex'')
Part I: Definitions.............................................. 70
Part II: General rules of verification:
A. Designation of inspectors and inspection assistants...... 73
B. Privileges and immunities................................ 74
C. Standing arrangements:
Points of entry.......................................... 76
Arrangements for use of non-scheduled aircraft........... 77
Administrative arrangements.............................. 78
Approved equipment....................................... 78
D. Pre-inspection activities:
Notification............................................. 79
Entry into the territory of the inspected State Party or
Host State and transfer to the inspection site......... 79
Pre-inspection briefing.................................. 80
E. Conduct of inspections:
General rules............................................ 80
Safety................................................... 80
Communications........................................... 81
Inspection team and inspected State Party rights......... 81
Collection, handling and analysis of samples............. 82
Extension of inspection duration......................... 83
Debriefing............................................... 83
F. Departure................................................. 83
G. Reports................................................... 83
H. Application of general provisions......................... 84
Part III: General provisions for verification measures pursuant
to articles IV, V and VI, paragraph 3:
A. Initial inspections and facility agreements............... 84
B. Standing arrangements..................................... 85
C. Pre-inspection activities................................. 86
Part IV (A): Destruction of chemical weapons and its verification
pursuant to article IV:
A. Declarations:
Chemical Weapons......................................... 86
Declarations of chemical weapons pursuant to Article III,
paragraph 1 (a) (iii).................................. 88
Declarations of past transfers and receipts.............. 88
Submission of the general plan for destruction of
chemical weapons....................................... 88
B. Measures to secure the storage facility and storage
facility preparation....................................... 89
C. Destruction:
Principles and methods for destruction of chemical
weapons................................................ 89
Order of destruction..................................... 89
Modification of intermediate destruction deadlines....... 91
Extension of the deadline for completion of destruction.. 92
Detailed annual plans for destruction.................... 92
Annual reports on destruction............................ 94
D. Verification:
Verification of declarations of chemical weapons through
on-site inspection..................................... 94
Systematic verification of storage facilities............ 94
Inspection and visits.................................... 95
Systematic verification of the destruction of chemical
weapons................................................ 96
Chemical weapons storage facilities at chemical weapons
destruction facilities................................. 98
Systematic on-site verification measures at chemical
weapons destruction facilities......................... 98
Part IV (B): Old chemical weapons and abandoned chemical weapons:
A. General................................................... 99
B. Regime for old chemical weapons........................... 99
C. Regime for abandoned chemical weapons..................... 100
Part V: Destruction of chemical weapons production facilities and
its verification pursuant to article V:
A. Declarations:
Declarations of chemical weapons production facilities... 102
Declarations of chemical weapons production facilities
pursuant to Article III, paragraph 1(c) (iii).......... 103
Declarations of past transfers and receipts.............. 104
Submission of general plans for destruction.............. 104
Submission of annual plans for destruction and annual
reports on destruction................................. 104
B. Destruction:
General principles for destruction of chemical weapons
production facilities.................................. 105
Principles and methods for closure of a chemical weapons
production facility.................................... 105
Technical maintenance of chemical weapons production
facilities prior to their destruction.................. 106
Principles and methods for temporary conversion of
chemical weapons production facilities into chemical
weapons destruction facilities......................... 106
Principles and methods related to destruction of a
chemical weapons production facility................... 107
Order of destruction..................................... 107
Detailed plans for destruction........................... 108
Review of detailed plans................................. 109
C. Verification:
Verification of declarations of chemical weapons
production facilities through on-site inspection....... 110
Systematic verification of chemical weapons production
facilities and cessation of their activities........... 111
Verification of destruction of chemical weapons
production facilities.................................. 112
Verification of temporary conversion of a chemical
weapons production facility into a chemical weapons
destruction facility................................... 112
D. Conversion of chemical weapons production facilities to
purposes not prohibited under this convention:
Procedures for requesting conversion..................... 113
Actions pending a decision............................... 114
Conditions for conversion................................ 115
Decision by the Executive Council and the Conference..... 115
Detailed plans for conversion............................ 116
Review of detailed plans................................. 116
Part VI: Activities not prohibited under this convention in
accordance with article VI: Regime for schedule 1 chemicals and
facilities related to such chemicals:
A. General provisions........................................ 118
B. Transfers................................................. 118
C. Production:
General principles for production........................ 118
Single small-scale facility.............................. 119
Other facilities......................................... 119
D. Declarations:
Single small-scale facility.............................. 119
Other facilities referred to in paragraphs 10 and 11..... 120
E. Verification:
Single small-scale facility.............................. 121
Other facilities referred to in paragraphs 10 and 11..... 122
Part VII: Activities not prohibited under this convention in
accordance with article VI: Regime for schedule 2 chemicals and
facilities related to such chemicals:
A. Declarations:
Declarations of aggregate national data.................. 123
Declarations of plant sites producing, processing or
consuming Schedule 2 Chemicals......................... 123
Declarations on past production of Schedule 2 chemicals
for chemical weapons purposes.......................... 125
Information to States Parties............................ 125
B. Verification:
General.................................................. 125
Inspection aims.......................................... 126
Initial inspections...................................... 126
Inspections.............................................. 126
Inspection procedures.................................... 127
Notification of inspection............................... 128
C. Transfers to States not party to this convention.......... 128
Part VIII: Activities not prohibited under this convention in
accordance with article VI: Regime for schedule 3 chemicals and
facilities related to such chemicals:
A. Declarations:
Declarations of aggregate national data.................. 128
Declarations of plant sites producing Schedule 3
chemicals.............................................. 129
Declarations on past production of Schedule 3 chemicals
for chemical weapons purposes.......................... 130
Information to States Parties............................ 130
B. Verification:
General.................................................. 130
Inspection aims.......................................... 131
Inspection procedures.................................... 131
Notification of inspection............................... 132
C. Transfers to States not party to this convention:......... 132
Part IX: Activities not prohibited under this convention in
accordance with article VI: Regime for other chemical
production facilities:
A. Declarations:
List of other chemical production facilities............. 132
Information to States Parties........................... 132
Assistance by the Technical Secretariat.................. 133
B. Verification:
General.................................................. 134
Inspection aims.......................................... 134
Inspection procedures.................................... 134
Notification of inspection............................... 135
C. Implementation and review of section B:
Implementation........................................... 135
Review................................................... 135
Part X: Challenge inspections pursuant to article IX:
A. Designation and selection of inspectors and inspection
assistants................................................. 136
B. Pre-inspection activities:
Notification............................................. 136
Entry into the territory of the inspected State Party or
the Host State......................................... 137
Alternative determination of final perimeter............. 138
Verification of location................................. 139
Securing the site, exit monitoring....................... 139
Pre-inspection briefing and inspection plan.............. 140
Perimeter activities..................................... 141
C. Conduct of inspections:
General rules............................................ 141
Managed access........................................... 142
Observer................................................. 143
Duration of inspection................................... 144
D. Post-inspection activities:
Departure................................................ 144
Reports.................................................. 144
Part XI: Investigation in cases of alleged use of chemical
weapons:
A. General................................................... 145
B. Pre-inspection activities:
Request for an investigation............................. 145
Notification............................................. 145
Assignment of inspection team............................ 146
Dispatch of inspection team.............................. 146
Briefings................................................ 146
C. Conduct of inspections:
Access................................................... 146
Sampling................................................. 147
Extension of inspection site............................. 147
Extension of inspection duration......................... 147
Interviews............................................... 147
D. Reports:
Procedures............................................... 148
Contents................................................. 148
E. States not party to this convention....................... 148
Annex on the protection of confidential information
A. General principles for the handling of confidential
information.................................................... 148
B. Employment and conduct of personnel in the technical
secretariat.................................................... 150
C. Measures to protect sensitive installations and prevent
disclosure of confidential data in the course of on-site
verification activities........................................ 151
D. Procedures in case of breaches or alleged breaches of
confidentiality................................................ 152
Other documents associated with the convention
Resolution establishing the preparatory commission for the
organization for the prohibition of chemical weapons........... 152
Text on the establishment of a preparatory commission:
Annex 1: Privileges, immunities and practical arrangements in
connection with the hosting of the Preparatory Commission.. 157
Annex 2: Privileges, immunities, and practical arrangements
to be laid down in the Headquarters Agreement.............. 157
Annex 3: Information submitted and commitments undertaken by
the Netherlands and by the City of The Hague...............
Privileges and Immunities................................ 158
Building and Equipment................................... 159
Laboratory/training...................................... 160
Social Security.......................................... 161
Employment............................................... 161
General conditions relating to the Netherlands bid....... 161
Preamble
The States Parties to this Convention,
Determined to act with a view to achieving effective
progress towards general and complete disarmament under strict
and effective international control, including the prohibition
and elimination of all types of weapons of mass destruction,
Desiring to contribute to the realization of the purposes
and principles of the Charter of the United Nations,
Recalling that the General Assembly of the United Nations
has repeatedly condemned all actions contrary to the principles
and objectives of the Protocol for the Prohibition of the Use
in War of Asphyxiating, Poisonous or Other Gases, and of
Bacteriological Methods of Warfare, signed at Geneva on 17 June
1925 (the Geneva Protocol of 1925),
Recognizing that this Convention reaffirms principles and
objectives of and obligations assumed under the Geneva Protocol
of 1925, and the Convention on the Prohibition of the
Development, Production and Stockpiling of Bacteriological
(Biological) and Toxin Weapons and on their Destruction signed
at London, Moscow and Washington on 10 April 1972,
Bearing in mind the objective contained in Article IX of
the Convention on the Prohibition of the Development,
Production and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on their Destruction,
Determined for the sake of all mankind, to exclude
completely the possibility of the use of chemical weapons,
through the implementation of the provisions of this
Convention, thereby complementing the obligations assumed under
the Geneva Protocol of 1925,
Recognizing the prohibition, embodied in the pertinent
agreements and relevant principles of international law, of the
use of herbicides as a method of warfare,
Considering that achievements in the field of chemistry
should be used exclusively for the benefit of mankind,
Desiring to promote free trade in chemicals as well as
international cooperation and exchange of scientific and
technical information in the field of chemical activities for
purposes not prohibited under this Convention in order to
enhance the economic and technological development of all
States Parties,
Convinced that the complete and effective prohibition of
the development, production, acquisition, stockpiling,
retention, transfer and use of chemical weapons, and their
destruction, represent a necessary step towards the achievement
of these common objectives,
Have agreed as follows:
Article I
general obligations
1. Each State Party to this Convention undertakes never
under any circumstances:
(a) To develop, produce, otherwise acquire, stockpile
or retain chemical weapons, or transfer, directly or
indirectly, chemical weapons to anyone;
(b) To use chemical weapons;
(c) To engage in any military preparations to use
chemical weapons;
(d) To assist, encourage or induce, in any way,
anyone to engage in any activity prohibited to a State
Party under this Convention.
2. Each State Party undertakes to destroy chemical weapons
it owns or possesses, or that are located in any place under
its jurisdiction or control, in accordance with the provisions
of this Convention.
3. Each State Party undertakes to destroy all chemical
weapons it abandoned on the territory of another State Party,
in accordance with the provisions of this Convention.
4. Each State Party undertakes to destroy any chemical
weapons production facilities it owns or possesses, or that are
located in any place under its jurisdiction or control, in
accordance with the provisions of this Convention.
5. Each State Party undertakes not to use riot control
agents as a method of warfare.
Article II
definitions and criteria
For the purposes of this Convention:
1. ``Chemical Weapons'' means the following, together or
separately:
(a) Toxic chemicals and their precursors, except
where intended for purposes not prohibited under this
Convention, as long as the types and quantities are
consistent with such purposes;
(b) Munitions and devices, specifically designed to
cause death or other harm through the toxic properties
of those toxic chemicals specified in subparagraph (a),
which would be released as a result of the employment
of such munitions and devices;
(c) Any equipment specifically designed for use
directly in connection with the employment of munitions
and devices specified in subparagraph (b).
2. ``Toxic Chemical'' means: Any chemical which through its
chemical action on life processes can cause death, temporary
incapacitation or permanent harm to humans or animals. This
includes all such chemicals, regardless of their origin or of
their method of production, and regardless of whether they are
produced in facilities, in munitions or elsewhere.
(For the purpose of implementing this Convention, toxic
chemicals which have been identified for the application of
verification measures are listed in Schedules contained in the
Annex on Chemicals.)
3. ``Precursor'' means: Any chemical reactant which takes
part at any stage in the production by whatever method of a
toxic chemical. This includes any key component of a binary or
multicomponent chemical system.
(For the purpose of implementing this Convention,
precursors which have been identified for the application of
verification measures are listed in Schedules contained in the
Annex on Chemicals.)
4. ``Key Component of Binary or Multicomponent Chemical
Systems'' (hereinafter referred to as ``key component'') means:
The precursor which plays the most important role in
determining the toxic properties of the final product and
reacts rapidly with other chemicals in the binary or
multicomponent system.
5. ``Old Chemical Weapons'' means:
(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.
6. ``Abandoned Chemical Weapons'' means: 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.
7. ``Riot Control Agent'' means: Any chemical not listed in
a Schedule, which can produce rapidly in humans sensory
irritation or disabling physical effects which disappear within
a short time following termination of exposure.
8. ``Chemical Weapons Production Facility'':
(a) Means any equipment, as well as any building
housing such equipment, that was designed, constructed
or used at any time since 1 January 1946:
(i) As part of the stage in the production of
chemicals (``final technological stage'') where
the material flows would contain, when the
equipment is in operation:
(1) Any chemical listed in Schedule 1
in the Annex on Chemicals; or
(2) Any other chemical that has no
use, above 1 tonne per year on the
territory of a State Party or in any
other place under the jurisdiction or
control of a State Party, for purposes
not prohibited under this Convention,
but can be used for chemical weapons
purposes; or
(ii) For filling chemical weapons, including,
inter alia, the filling of chemicals listed in
Schedule 1 into munitions, devices or bulk
storage containers; the filling of chemicals
into containers that form part of assembled
binary munitions and devices or into chemical
submunitions that form part of assembled
unitary munitions and devices, and the loading
of the containers and chemical submunitions
into the respective munitions and devices;
(b) Does not mean:
(i) Any facility having a production capacity
for synthesis of chemicals specified in
subparagraph (a) (i) that is less than 1 tonne;
(ii) Any facility in which a chemical
specified in subparagraph (a) (i) is or was
produced as an unavoidable by-product of
activities for purposes not prohibited under
this Convention, provided that the chemical
does not exceed 3 per cent of the total product
and that the facility is subject to declaration
and inspection under the Annex on
Implementation and Verification (hereinafter
referred to as ``Verification Annex''); or
(iii) The single small-scale facility for
production of chemicals listed in Schedule 1
for purposes not prohibited under this
Convention as referred to in Part VI of the
Verification Annex.
9. ``Purposes Not Prohibited Under this Convention'' means:
(a) Industrial, agricultural, research, medical,
pharmaceutical or other peaceful purposes;
(b) Protective purposes, namely those purposes
directly related to protection against toxic chemicals
and to protection against chemical weapons;
(c) Military purposes not connected with the use of
chemical weapons and not dependent on the use of the
toxic properties of chemicals as a method of warfare;
(d) Law enforcement including domestic riot control
purposes.
10. ``Production Capacity'' means: The annual quantitative
potential for manufacturing a specific chemical based on the
technological process actually used or, if the process is not
yet operational, planned to be used at the relevant facility.
It shall be deemed to be equal to the nameplate capacity or, if
the nameplate capacity is not available, to the design
capacity. The nameplate capacity is the product output under
conditions optimized for maximum quantity for the production
facility, as demonstrated by one or more test-runs. The design
capacity is the corresponding theoretically calculated product
output.
11. ``Organization'' means the Organization for the
Prohibition of Chemical Weapons established pursuant to Article
VIII of this Convention.
12. For the purposes of Article VI:
(a) ``Production'' of a chemical means its formation
through chemical reaction;
(b) ``Processing'' of a chemical means a physical
process, such as formulation, extraction and
purification, in which a chemical is not converted into
another chemical;
(c) ``Consumption'' of a chemical means its
conversion into another chemical via a chemical
reaction.
Article III
DECLARATIONS
1. Each State Party shall submit to the Organization, not
later than 30 days after this Convention enters into force for
it, the following declarations, in which it shall:
(a) With respect to chemical weapons:
(i) Declare whether it owns or possesses any
chemical weapons, or whether there are any
chemical weapons located in any place under its
jurisdiction or control;
(ii) Specify the precise location, aggregate
quantity and detailed inventory of chemical
weapons it owns or possesses, or that are
located in any place under its jurisdiction or
control, in accordance with Part IV (A),
paragraphs 1 to 3, of the Verification Annex,
except for those chemical weapons referred to
in sub-subparagraph (iii);
(iii) Report any chemical weapons on its
territory that are owned and possessed by
another State and located in any place under
the jurisdiction or control of another State,
in accordance with Part IV (A), paragraph 4, of
the Verification Annex;
(iv) Declare whether it has transferred or
received, directly or indirectly, any chemical
weapons since 1 January 1946 and specify the
transfer or receipt of such weapons, in
accordance with Part IV (A), paragraph 5, of
the Verification Annex;
(v) Provide its general plan for destruction
of chemical weapons that it owns or possesses,
or that are located in any place under its
jurisdiction or control, in accordance with
Part IV (A), paragraph 6, of the Verification
Annex;
(b) With respect to old chemical weapons and abandoned
chemical weapons:
(i) Declare whether it has on its territory old
chemical weapons and provide all available information
in accordance with Part IV (B), paragraph 3, of the
Verification Annex;
(ii) Declare whether there are abandoned chemical
weapons on its territory and provide all available
information in accordance with Part IV (B), paragraph
8, of the Verification Annex;
(iii) Declare whether it has abandoned chemical
weapons on the territory of other States and provide
all available information in accordance with Part IV
(B), paragraph 10, of the Verification Annex;
(c) With respect to chemical weapons production facilities:
(i) Declare whether it has or has had any chemical
weapons production facility under its ownership or
possession, or that is or has been located in any place
under its jurisdiction or control at any time since 1
January 1946;
(ii) Specify any chemical weapons production facility
it has or has had under its ownership or possession or
that is or has been located in any place under its
jurisdiction or control at any time since 1 January
1946, in accordance with Part V, paragraph 1, of the
Verification Annex, except for those facilities
referred to in sub-subparagraph (iii);
(iii) Report any chemical weapons production facility
on its territory that another State has or has had
under its ownership and possession and that is or has
been located in any place under the jurisdiction or
control of another State at any time since 1 January
1946, in accordance with Part V, paragraph 2, of the
Verification Annex;
(iv) Declare whether it has transferred or received,
directly or indirectly, any equipment for the
production of chemical weapons since 1 January 1946 and
specify the transfer or receipt of such equipment, in
accordance with Part V, paragraphs 3 to 5, of the
Verification Annex;
(v) Provide its general plan for destruction of any
chemical weapons production facility it owns or
possesses, or that is located in any place under its
jurisdiction or control, in accordance with Part V,
paragraph 6, of the Verification Annex;
(vi) Specify actions to be taken for closure of any
chemical weapons production facility it owns or
possesses, or that is located in any place under its
jurisdiction or control, in accordance with Part V,
paragraph 1 (i), of the Verification Annex;
(vii) Provide its general plan for any temporary
conversion of any chemical weapons production facility
it owns or possesses, or that is located in any place
under its jurisdiction or control, into a chemical
weapons destruction facility, in accordance with Part
V, paragraph 7, of the Verification Annex;
(d) With respect to other facilities: Specify the precise
location, nature and general scope of activities of any
facility or establishment under its ownership or possession, or
located in any place under its jurisdiction or control, and
that has been designed, constructed or used since 1 January
1946 primarily for development of chemical weapons. Such
declaration shall include, inter alia, laboratories and test
and evaluation sites;
(e) With respect to riot control agents: Specify the
chemical name, structural formula and Chemical Abstracts
Service (CAS) registry number, if assigned, of each chemical it
holds for riot control purposes. This declaration shall be
updated not later than 30 days after any change becomes
effective.
2. The provisions of this Article and the relevant
provisions of Part IV of the Verification Annex shall not, at
the discretion of a State Party, apply to chemical weapons
buried on its territory before 1 January 1977 and which remain
buried, or which had been dumped at sea before 1 January 1985.
Article IV
CHEMICAL WEAPONS
1. The provisions of this Article and the detailed
procedures for its implementation shall apply to all chemical
weapons owned or possessed by a State Party, or that are
located in any place under its jurisdiction or control, except
old chemical weapons and abandoned chemical weapons to which
Part IV (B) of the Verification Annex applies.
2. Detailed procedures for the implementation of this
Article are set forth in the Verification Annex.
3. All locations at which chemical weapons specified in
paragraph 1 are stored or destroyed shall be subject to
systematic verification through on-site inspection and
monitoring with on-site instruments, in accordance with Part IV
(A) of the Verification Annex.
4. Each State Party shall, immediately after the
declaration under Article III, paragraph 1 (a), has been
submitted, provide access to chemical weapons specified in
paragraph 1 for the purpose of systematic verification of the
declaration through on-site inspection. Thereafter, each State
Party shall not remove any of these chemical weapons, except to
a chemical weapons destruction facility. It shall provide
access to such chemical weapons, for the purpose of systematic
on-site verification.
5. Each State Party shall provide access to any chemical
weapons destruction facilities and their storage areas, that it
owns or possesses, or that are located in any place under its
jurisdiction or control, for the purpose of systematic
verification through on-site inspection and monitoring with on-
site instruments.
6. Each State Party shall destroy all chemical weapons
specified in paragraph 1 pursuant to the Verification Annex and
in accordance with the agreed rate and sequence of destruction
(hereinafter referred to as ``order of destruction''). Such
destruction shall begin not later than two years after this
Convention enters into force for it and shall finish not later
than 10 years after entry into force of this Convention. A
State Party is not precluded from destroying such chemical
weapons at a faster rate.
7. Each State Party shall:
(a) Submit detailed plans for the destruction of
chemical weapons specified in paragraph 1 not later
than 60 days before each annual destruction period
begins, in accordance with Part IV (A), paragraph 29,
of the Verification Annex; the detailed plans shall
encompass all stocks to be destroyed during the next
annual destruction period;
(b) Submit declarations annually regarding the
implementation of its plans for destruction of chemical
weapons specified in paragraph 1, not later than 60
days after the end of each annual destruction period;
and
(c) Certify, not later than 30 days after the
destruction process has been completed, that all
chemical weapons specified in paragraph 1 have been
destroyed.
8. If a State ratifies or accedes to this Convention after
the 10-year period for destruction set forth in paragraph 6, it
shall destroy chemical weapons specified in paragraph 1 as soon
as possible. The order of destruction and procedures for
stringent verification for such a State Party shall be
determined by the Executive Council.
9. Any chemical weapons discovered by a State Party after
the initial declaration of chemical weapons shall be reported,
secured and destroyed in accordance with Part IV (A) of the
Verification Annex.
10. Each State Party, during transportation, sampling,
storage and destruction of chemical weapons, shall assign the
highest priority to ensuring the safety of people and to
protecting the environment. Each State Party shall transport,
sample, store and destroy chemical weapons in accordance with
its national standards for safety and emissions.
11. Any State Party which has on its territory chemical
weapons that are owned or possessed by another State, or that
are located in any place under the jurisdiction or control of
another State, shall make the fullest efforts to ensure that
these chemical weapons are removed from its territory not later
than one year after this Convention enters into force for it.
If they are not removed within one year, the State Party may
request the Organization and other States Parties to provide
assistance in the destruction of these chemical weapons.
12. Each State Party undertakes to cooperate with other
States Parties that request information or assistance on a
bilateral basis or through the Technical Secretariat regarding
methods and technologies for the safe and efficient destruction
of chemical weapons.
13. In carrying out verification activities pursuant to
this Article and Part IV (A) of the Verification Annex, the
Organization shall consider measures to avoid unnecessary
duplication of bilateral or multilateral agreements on
verification of chemical weapons storage and their destruction
among States Parties.
To this end, the Executive Council shall decide to limit
verification to measures complementary to those undertaken
pursuant to such a bilateral or multilateral agreement, if it
considers that:
(a) Verification provisions of such an agreement are
consistent with the verification provisions of this
Article and Part IV (A) of the Verification Annex;
(b) Implementation of such an agreement provides for
sufficient assurance of compliance with the relevant
provisions of this Convention; and
(c) Parties to the bilateral or multilateral
agreement keep the Organization fully informed about
their verification activities.
14. If the Executive Council takes a decision pursuant to
paragraph 13, the Organization shall have the right to monitor
the implementation of the bilateral or multilateral agreement.
15. Nothing in paragraphs 13 and 14 shall affect the
obligation of a State Party to provide declarations pursuant to
Article III, this Article and Part IV (A) of the Verification
Annex.
16. Each State Party shall meet the costs of destruction of
chemical weapons it is obliged to destroy. It shall also meet
the costs of verification of storage and destruction of these
chemical weapons unless the Executive Council decides
otherwise. If the Executive Council decides to limit
verification measures of the Organization pursuant to paragraph
13, the costs of complementary verification and monitoring by
the Organization shall be paid in accordance with the United
Nations scale of assessment, as specified in Article VIII,
paragraph 7.
17. The provisions of this Article and the relevant
provisions of Part IV of the Verification Annex shall not, at
the discretion of a State Party, apply to chemical weapons
buried on its territory before 1 January 1977 and which remain
buried, or which had been dumped at sea before 1 January 1985.
Article V
CHEMICAL WEAPONS PRODUCTION FACILITIES
1. The provisions of this Article and the detailed
procedures for its implementation shall apply to any and all
chemical weapons production facilities owned or possessed by a
State Party, or that are located in any place under its
jurisdiction or control.
2. Detailed procedures for the implementation of this
Article are set forth in the Verification Annex.
3. All chemical weapons production facilities specified in
paragraph 1 shall be subject to systematic verification through
on-site inspection and monitoring with on-site instruments in
accordance with Part V of the Verification Annex.
4. Each State Party shall cease immediately all activity at
chemical weapons production facilities specified in paragraph
1, except activity required for closure.
5. No State Party shall construct any new chemical weapons
production facilities or modify any existing facilities for the
purpose of chemical weapons production or for any other
activity prohibited under this Convention.
6. Each State Party shall, immediately after the
declaration under Article III, paragraph 1 (c), has been
submitted, provide access to chemical weapons production
facilities specified in paragraph 1, for the purpose of
systematic verification of the declaration through on-site
inspection.
7. Each State Party shall:
(a) Close, not later than 90 days after this
Convention enters into force for it, all chemical
weapons production facilities specified in paragraph 1,
in accordance with Part V of the Verification Annex,
and give notice thereof; and
(b) Provide access to chemical weapons production
facilities specified in paragraph 1, subsequent to
closure, for the purpose of systematic verification
through on-site inspection and monitoring with on-site
instruments in order to ensure that the facility
remains closed and is subsequently destroyed.
8. Each State Party shall destroy all chemical weapons
production facilities specified in paragraph 1 and related
facilities and equipment, pursuant to the Verification Annex
and in accordance with an agreed rate and sequence of
destruction (hereinafter referred to as ``order of
destruction''). Such destruction shall begin not later than one
year after this Convention enters into force for it, and shall
finish not later than 10 years after entry into force of this
Convention. A State Party is not precluded from destroying such
facilities at a faster rate.
9. Each State Party shall:
(a) Submit detailed plans for destruction of chemical
weapons production facilities specified in paragraph 1,
not later than 180 days before the destruction of each
facility begins;
(b) Submit declarations annually regarding the
implementation of its plans for the destruction of all
chemical weapons production facilities specified in
paragraph 1, not later than 90 days after the end of
each annual destruction period; and
(c) Certify, not later than 30 days after the
destruction process has been completed, that all
chemical weapons production facilities specified in
paragraph 1 have been destroyed.
10. If a State ratifies or accedes to this Convention after
the 10-year period for destruction set forth in paragraph 8, it
shall destroy chemical weapons production facilities specified
in paragraph 1 as soon as possible. The order of destruction
and procedures for stringent verification for such a State
Party shall be determined by the Executive Council.
11. Each State Party, during the destruction of chemical
weapons production facilities, shall assign the highest
priority to ensuring the safety of people and to protecting the
environment. Each State Party shall destroy chemical weapons
production facilities in accordance with its national standards
for safety and emissions.
12. Chemical weapons production facilities specified in
paragraph 1 may be temporarily converted for destruction of
chemical weapons in accordance with Part V, paragraphs 18 to
25, of the Verification Annex. Such a converted facility must
be destroyed as soon as it is no longer in use for destruction
of chemical weapons but, in any case, not later than 10 years
after entry into force of this Convention.
13. A State Party may request, in exceptional cases of
compelling need, permission to use a chemical weapons
production facility specified in paragraph 1 for purposes not
prohibited under this Convention. Upon the recommendation of
the Executive Council, the Conference of the States Parties
shall decide whether or not to approve the request and shall
establish the conditions upon which approval is contingent in
accordance with Part V, Section D, of the Verification Annex.
14. The chemical weapons production facility shall be
converted in such a manner that the converted facility is not
more capable of being reconverted into a chemical weapons
production facility than any other facility used for
industrial, agricultural, research, medical, pharmaceutical or
other peaceful purposes not involving chemicals listed in
Schedule 1.
15. All converted facilities shall be subject to systematic
verification through on-site inspection and monitoring with on-
site instruments in accordance with Part V, Section D, of the
Verification Annex.
16. In carrying out verification activities pursuant to
this Article and Part V of the Verification Annex, the
Organization shall consider measures to avoid unnecessary
duplication of bilateral or multilateral agreements on
verification of chemical weapons production facilities and
their destruction among States Parties.
To this end, the Executive Council shall decide to limit
the verification to measures complementary to those undertaken
pursuant to such a bilateral or multilateral agreement, if it
considers that:
(a) Verification provisions of such an agreement are
consistent with the verification provisions of this
Article and Part V of the Verification Annex;
(b) Implementation of the agreement provides for
sufficient assurance of compliance with the relevant
provisions of this Convention; and
(c) Parties to the bilateral or multilateral
agreement keep the Organization fully informed about
their verification activities.
17. If the Executive Council takes a decision pursuant to
paragraph 16, the Organization shall have the right to monitor
the implementation of the bilateral or multilateral agreement.
18. Nothing in paragraphs 16 and 17 shall affect the
obligation of a State Party to make declarations pursuant to
Article III, this Article and Part V of the Verification Annex.
19. Each State Party shall meet the costs of destruction of
chemical weapons production facilities it is obliged to
destroy. It shall also meet the costs of verification under
this Article unless the Executive Council decides otherwise. If
the Executive Council decides to limit verification measures of
the Organization pursuant to paragraph 16, the costs of
complementary verification and monitoring by the Organization
shall be paid in accordance with the United Nations scale of
assessment, as specified in Article VIII, paragraph 7.
Articles VI
ACTIVITIES NOT PROHIBITED UNDER THIS CONVENTION
1. Each State Party has the right, subject to the
provisions of this Convention, to develop, produce, otherwise
acquire, retain, transfer and use toxic chemicals and their
precursors for purposes not prohibited under this Convention.
2. Each State Party shall adopt the necessary measures to
ensure that toxic chemicals and their precursors are only
developed, produced, otherwise acquired, retained, transferred,
or used within its territory or in any other place under its
jurisdiction or control for purposes not prohibited under this
Convention. To this end, and in order to verify that activities
are in accordance with obligations under this Convention, each
State Party shall subject toxic chemicals and their precursors
listed in Schedules 1, 2 and 3 of the Annex on Chemicals,
facilities related to such chemicals, and other facilities as
specified in the Verification Annex, that are located on its
territory or in any other place under its jurisdiction or
control, to verification measures as provided in the
Verification Annex.
3. Each State Party shall subject chemicals listed in
Schedule 1 (hereinafter referred to as ``Schedule 1
chemicals'') to the prohibitions on production, acquisition,
retention, transfer and use as specified in Part VI of the
Verification Annex. It shall subject Schedule 1 chemicals and
facilities specified in Part VI of the Verification Annex to
systematic verification through on-site inspection and
monitoring with on-site instruments in accordance with that
Part of the Verification Annex.
4. Each State Party shall subject chemicals listed in
Schedule 2 (hereinafter referred to as ``Schedule 2
chemicals'') and facilities specified in Part VII of the
Verification Annex to data monitoring and on-site verification
in accordance with that Part of the Verification Annex.
5. Each State Party shall subject chemicals listed in
Schedule 3 (hereinafter referred to as ``Schedule 3
chemicals'') and facilities specified in Part VIII of the
Verification Annex to data monitoring and on-site verification
in accordance with that Part of the Verification Annex.
6. Each State Party shall subject facilities specified in
Part IX of the Verification Annex to data monitoring and
eventual on-site verification in accordance with that Part of
the Verification Annex unless decided otherwise by the
Conference of the States Parties pursuant to Part IX, paragraph
22, of the Verification Annex.
7. Not later than 30 days after this Convention enters into
force for it, each State Party shall make an initial
declaration on relevant chemicals and facilities in accordance
with the Verification Annex.
8. Each State Party shall make annual declarations
regarding the relevant chemicals and facilities in accordance
with the Verification Annex.
9. For the purpose of on-site verification, each State
Party shall grant to the inspectors access to facilities as
required in the Verification Annex.
10. In conducting verification activities, the Technical
Secretariat shall avoid undue intrusion into the State Party's
chemical activities for purposes not prohibited under this
Convention and, in particular, abide by the provisions set
forth in the Annex on the Protection of Confidential
Information (hereinafter referred to as ``Confidentiality
Annex'').
11. The provisions of this Article shall be implemented in
a manner which avoids hampering the economic or technological
development of States Parties, and international cooperation in
the field of chemical activities for purposes not prohibited
under this Convention including the international exchange of
scientific and technical information and chemicals and
equipment for the production, processing or use of chemicals
for purposes not prohibited under this Convention.
Article VII
NATIONAL IMPLEMENTATION MEASURES
General undertakings
1. Each State Party shall, in accordance with its
constitutional processes, adopt the necessary measures to
implement its obligations under this Convention. In particular,
it shall:
(a) Prohibit natural and legal persons anywhere on
its territory or in any other place under its
jurisdiction as recognized by international law from
undertaking any activity prohibited to a State Party
under this Convention, including enacting penal
legislation with respect to such activity;
(b) Not permit in any place under its control any
activity prohibited to a State Party under this
Convention; and
(c) Extend its penal legislation enacted under
subparagraph (a) to any activity prohibited to a State
Party under this Convention undertaken anywhere by
natural persons, possessing its nationality, in
conformity with international law.
2. Each State Party shall cooperate with other States
Parties and afford the appropriate form of legal assistance to
facilitate the implementation of the obligations under
paragraph 1.
3. Each State Party, during the implementation of its
obligations under this Convention, shall assign the highest
priority to ensuring the safety of people and to protecting the
environment, and shall cooperate as appropriate with other
States Parties in this regard.
Relations between the State party and the organization
4. In order to fulfil its obligations under this
Convention, each State Party shall designate or establish a
National Authority to serve as the national focal point for
effective liaison with the Organization and other States
Parties. Each State Party shall notify the Organization of its
National Authority at the time that this Convention enters into
force for it.
5. Each State Party shall inform the Organization of the
legislative and administrative measures taken to implement this
Convention.
6. Each State Party shall treat as confidential and afford
special handling to information and data that it receives in
confidence from the Organization in connection with the
implementation of this Convention. It shall treat such
information and data exclusively in connection with its rights
and obligations under this Convention and in accordance with
the provisions set forth in the Confidentiality Annex.
7. Each State Party undertakes to cooperate with the
Organization in the exercise of all its functions and in
particular to provide assistance to the Technical Secretariat.
Article VIII
the organization
A. General provisions
1. The States Parties to this Convention hereby establish
the Organization for the Prohibition of Chemical Weapons to
achieve the object and purpose of this Convention, to ensure
the implementation of its provisions, including those for
international verification of compliance with it, and to
provide a forum for consultation and cooperation among States
Parties.
2. All States Parties to this Convention shall be members
of the Organization. A State Party shall not be deprived of its
membership in the Organization.
3. The seat of the Headquarters of the Organization shall
be The Hague, Kingdom of the Netherlands.
4. There are hereby established as the organs of the
Organization: the Conference of the States Parties, the
Executive Council, and the Technical Secretariat.
5. The Organization shall conduct its verification
activities provided for under this Convention in the least
intrusive manner possible consistent with the timely and
efficient accomplishment of their objectives. It shall request
only the information and data necessary to fulfil its
responsibilities under this Convention. It shall take every
precaution to protect the confidentiality of information on
civil and military activities and facilities coming to its
knowledge in the implementation of this Convention and, in
particular, shall abide by the provisions set forth in the
Confidentiality Annex.
6. In undertaking its verification activities the
Organization shall consider measures to make use of advances in
science and technology.
7. The costs of the Organization's activities shall be paid
by States Parties in accordance with the United Nations scale
of assessment adjusted to take into account differences in
membership between the United Nations and this Organization,
and subject to the provisions of Articles IV and V. Financial
contributions of States Parties to the Preparatory Commission
shall be deducted in an appropriate way from their
contributions to the regular budget. The budget of the
Organization shall comprise two separate chapters, one relating
to administrative and other costs, and one relating to
verification costs.
8. A member of the Organization which is in arrears in the
payment of its financial contribution to the Organization shall
have no vote in the Organization if the amount of its arrears
equals or exceeds the amount of the contribution due from it
for the preceding two full years. The Conference of the States
Parties may, nevertheless, permit such a member to vote if it
is satisfied that the failure to pay is due to conditions
beyond the control of the member.
B. The Conference of the States Parties
Composition, procedures and decision-making
9. The Conference of the States Parties (hereinafter
referred to as ``the Conference'') shall be composed of all
members of this Organization. Each member shall have one
representative in the Conference, who may be accompanied by
alternates and advisers.
10. The first session of the Conference shall be convened
by the depositary not later than 30 days after the entry into
force of this Convention.
11. The Conference shall meet in regular sessions which
shall be held annually unless it decides otherwise.
12. Special sessions of the Conference shall be convened:
(a) When decided by the Conference;
(b) When requested by the Executive Council;
(c) When requested by any member and supported by one
third of the members; or
(d) In accordance with paragraph 22 to undertake
reviews of the operation of this Convention.
Except in the case of subparagraph (d), the special session
shall be convened not later than 30 days after receipt of the
request by the Director-General of the Technical Secretariat,
unless specified otherwise in the request.
13. The Conference shall also be convened in the form of an
Amendment Conference in accordance with Article XV, paragraph
2.
14. Sessions of the Conference shall take place at the seat
of the Organization unless the Conference decides otherwise.
15. The Conference shall adopt its rules of procedure. At
the beginning of each regular session, it shall elect its
Chairman and such other officers as may be required. They shall
hold office until a new Chairman and other officers are elected
at the next regular session.
16. A majority of the members of the Organization shall
constitute a quorum for the Conference.
17. Each member of the Organization shall have one vote in
the Conference.
18. The Conference shall take decisions on questions of
procedure by a simple majority of the members present and
voting. Decisions on matters of substance should be taken as
far as possible by consensus. If consensus is not attainable
when an issue comes up for decision, the Chairman shall defer
any vote for 24 hours and during this period of deferment shall
make every effort to facilitate achievement of consensus, and
shall report to the Conference before the end of this period.
If consensus is not possible at the end of 24 hours, the
Conference shall take the decision by a two-thirds majority of
members present and voting unless specified otherwise in this
Convention. When the issue arises as to whether the question is
one of substance or not, that question shall be treated as a
matter of substance unless otherwise decided by the Conference
by the majority required for decisions on matters of substance.
Powers and functions
19. The Conference shall be the principal organ of the
Organization. It shall consider any questions, matters or
issues within the scope of this Convention, including those
relating to the powers and functions of the Executive Council
and the Technical Secretariat. It may make recommendations and
take decisions on any questions, matters or issues related to
this Convention raised by a State Party or brought to its
attention by the Executive Council.
20. The Conference shall oversee the implementation of this
Convention, and act in order to promote its object and purpose.
The Conference shall review compliance with this Convention. It
shall also oversee the activities of the Executive Council and
the Technical Secretariat and may issue guidelines in
accordance with this Convention to either of them in the
exercise of their functions.
21. The Conference shall:
(a) Consider and adopt at its regular sessions the
report, programme and budget of the Organization,
submitted by the Executive Council, as well as consider
other reports;
(b) Decide on the scale of financial contributions to
be paid by States Parties in accordance with paragraph
7;
(c) Elect the members of the Executive Council;
(d) Appoint the Director-General of the Technical
Secretariat (hereinafter referred to as ``the Director-
General'');
(e) Approve the rules of procedure of the Executive
Council submitted by the latter;
(f) Establish such subsidiary organs as it finds
necessary for the exercise of its functions in
accordance with this Convention;
(g) Foster international cooperation for peaceful
purposes in the field of chemical activities;
(h) Review scientific and technological developments
that could affect the operation of this Convention and,
in this context, direct the Director-General to
establish a Scientific Advisory Board to enable him, in
the performance of his functions, to render specialized
advice in areas of science and technology relevant to
this Convention, to the Conference, the Executive
Council or States Parties. The Scientific Advisory
Board shall be composed of independent experts
appointed in accordance with terms of reference adopted
by the Conference;
(i) Consider and approve at its first session any
draft agreements, provisions and guidelines developed
by the Preparatory Commission;
(j) Establish at its first session the voluntary fund
for assistance in accordance with Article X;
(k) Take the necessary measures to ensure compliance
with this Convention and to redress and remedy any
situation which contravenes the provisions of this
Convention, in accordance with Article XII.
22. The Conference shall not later than one year after the
expiry of the fifth and the tenth year after the entry into
force of this Convention, and at such other times within that
time period as may be decided upon, convene in special sessions
to undertake reviews of the operation of this Convention. Such
reviews shall take into account any relevant scientific and
technological developments. At intervals of five years
thereafter, unless otherwise decided upon, further sessions of
the Conference shall be convened with the same objective.
C. The Executive Council
Composition, procedure and decision-making
23. The Executive Council shall consist of 41 members. Each
State Party shall have the right, in accordance with the
principle of rotation, to serve on the Executive Council. The
members of the Executive Council shall be elected by the
Conference for a term of two years. In order to ensure the
effective functioning of this Convention, due regard being
specially paid to equitable geographical distribution, to the
importance of chemical industry, as well as to political and
security interests, the Executive Council shall be composed as
follows:
(a) Nine States Parties from Africa to be designated
by States Parties located in this region. As a basis
for this designation it is understood that, out of
these nine States Parties, three members shall, as a
rule, be the States Parties with the most significant
national chemical industry in the region as determined
by internationally reported and published data; in
addition, the regional group shall agree also to take
into account other regional factors in designating
these three members;
(b) Nine States Parties from Asia to be designated by
States Parties located in this region. As a basis for
this designation it is understood that, out of these
nine States Parties, four members shall, as a rule, be
the States Parties with the most significant national
chemical industry in the region as determined by
internationally reported and published data; in
addition, the regional group shall agree also to take
into account other regional factors in designating
these four members;
(c) Five States Parties from Eastern Europe to be
designated by States Parties located in this region. As
a basis for this designation it is understood that, out
of these five States Parties, one member shall, as a
rule, be the State Party with the most significant
national chemical industry in the region as determined
by internationally reported and published data; in
addition, the regional group shall agree also to take
into account other regional factors in designating this
one member;
(d) Seven States Parties from Latin America and the
Caribbean to be designated by States Parties located in
this region. As a basis for this designation it is
understood that, out of these seven States Parties,
three members shall, as a rule, be the States Parties
with the most significant national chemical industry in
the region as determined by internationally reported
and published data; in addition, the regional group
shall agree also to take into account other regional
factors in designating these three members;
(e) Ten States Parties from among Western European
and other States to be designated by States Parties
located in this region. As a basis for this designation
it is understood that, out of these 10 States Parties,
5 members shall, as a rule, be the States Parties with
the most significant national chemical industry in the
region as determined by internationally reported and
published data; in addition, the regional group shall
agree also to take into account other regional factors
in designating these five members;
(f) One further State Party to be designated
consecutively by States Parties located in the regions
of Asia and Latin America and the Caribbean. As a basis
for this designation it is understood that this State
Party shall be a rotating member from these regions.
24. For the first election of the Executive Council 20
members shall be elected for a term of one year, due regard
being paid to the established numerical proportions as
described in paragraph 23.
25. After the full implementation of Articles IV and V the
Conference may, upon the request of a majority of the members
of the Executive Council, review the composition of the
Executive Council taking into account developments related to
the principles specified in paragraph 23 that are governing its
composition.
26. The Executive Council shall elaborate its rules of
procedure and submit them to the Conference for approval.
27. The Executive Council shall elect its Chairman from
among its members.
28. The Executive Council shall meet for regular sessions.
Between regular sessions it shall meet as often as may be
required for the fulfillment of its powers and functions.
29. Each member of the Executive Council shall have one
vote. Unless otherwise specified in this Convention, the
Executive Council shall take decisions on matters of substance
by a two-thirds majority of all its members. The Executive
Council shall take decisions on questions of procedure by a
simple majority of all its members. When the issue arises as to
whether the question is one of substance or not, that question
shall be treated as a matter of substance unless otherwise
decided by the Executive Council by the majority required for
decisions on matters of substance.
Powers and functions
30. The Executive Council shall be the executive organ of
the Organization. It shall be responsible to the Conference.
The Executive Council shall carry out the powers and functions
entrusted to it under this Convention, as well as those
functions delegated to it by the Conference. In so doing, it
shall act in conformity with the recommendations, decisions and
guidelines of the Conference and assure their proper and
continuous implementation.
31. The Executive Council shall promote the effective
implementation of, and compliance with, this Convention. It
shall supervise the activities of the Technical Secretariat,
cooperate with the National Authority of each State Party and
facilitate consultations and cooperation among States Parties
at their request.
32. The Executive Council shall:
(a) Consider and submit to the Conference the draft
programme and budget of the Organization;
(b) Consider and submit to the Conference the draft
report of the Organization on the implementation of
this Convention, the report on the performance of its
own activities and such special reports as it deems
necessary or which the Conference may request;
(c) Make arrangements for the sessions of the
Conference including the preparation of the draft
agenda.
33. The Executive Council may request the convening of a
special session of the Conference.
34. The Executive Council shall:
(a) Conclude agreements or arrangements with States
and international organizations on behalf of the
Organization, subject to prior approval by the
Conference;
(b) Conclude agreements with States Parties on behalf
of the Organization in connection with Article X and
supervise the voluntary fund referred to in Article X;
(c) Approve agreements or arrangements relating to
the implementation of verification activities,
negotiated by the Technical Secretariat with States
Parties.
35. The Executive Council shall consider any issue or
matter within its competence affecting this Convention and its
implementation, including concerns regarding compliance, and
cases of non-compliance, and, as appropriate, inform States
Parties and bring the issue or matter to the attention of the
Conference.
36. In its consideration of doubts or concerns regarding
compliance and cases of non-compliance, including, inter alia,
abuse of the rights provided for under this Convention, the
Executive Council shall consult with the States Parties
involved and, as appropriate, request the State Party to take
measures to redress the situation within a specified time. To
the extent that the Executive Council considers further action
to be necessary, it shall take, inter alia, one or more of the
following measures:
(a) Inform all States Parties of the issue or matter;
(b) Bring the issue or matter to the attention of the
Conference;
(c) Make recommendations to the Conference regarding
measures to redress the situation and to ensure
compliance.
The Executive Council shall, in cases of particular gravity
and urgency, bring the issue or matter, including relevant
information and conclusions, directly to the attention of the
United Nations General Assembly and the United Nations Security
Council. It shall at the same time inform all States Parties of
this step.
D. The Technical Secretariat
37. The Technical Secretariat shall assist the Conference
and the Executive Council in the performance of their
functions. The Technical Secretariat shall carry out the
verification measures provided for in this Convention. It shall
carry out the other functions entrusted to it under this
Convention as well as those functions delegated to it by the
Conference and the Executive Council.
38. The Technical Secretariat shall:
(a) Prepare and submit to the Executive Council the
draft programme and budget of the Organization;
(b) Prepare and submit to the Executive Council the
draft report of the Organization on the implementation
of this Convention and such other reports as the
Conference or the Executive Council may request;
(c) Provide administrative and technical support to
the Conference, the Executive Council and subsidiary
organs;
(d) Address and receive communications on behalf of
the Organization to and from States Parties on matters
pertaining to the implementation of this Convention;
(e) Provide technical assistance and technical
evaluation to States Parties in the implementation of
the provisions of this Convention, including evaluation
of scheduled and unscheduled chemicals.
39. The Technical Secretariat shall:
(a) Negotiate agreements or arrangements relating to
the implementation of verification activities with
States Parties, subject to approval by the Executive
Council;
(b) Not later than 180 days after entry into force of
this Convention, coordinate the establishment and
maintenance of permanent stockpiles of emergency and
humanitarian assistance by States Parties in accordance
with Article X, paragraphs 7 (b) and (c). The Technical
Secretariat may inspect the items maintained for
serviceability. Lists of items to be stockpiled shall
be considered and approved by the Conference pursuant
to paragraph 21 (i) above;
(c) Administer the voluntary fund referred to in
Article X, compile declarations made by the States
Parties and register, when requested, bilateral
agreements concluded between States Parties or between
a State Party and the Organization for the purposes of
Article X.
40. The Technical Secretariat shall inform the Executive
Council of any problem that has arisen with regard to the
discharge of its functions, including doubts, ambiguities or
uncertainties about compliance with this Convention that have
come to its notice in the performance of its verification
activities and that it has been unable to resolve or clarify
through its consultations with the State Party concerned.
41. The Technical Secretariat shall comprise a Director-
General, who shall be its head and chief administrative
officer, inspectors and such scientific, technical and other
personnel as may be required.
42. The Inspectorate shall be a unit of the Technical
Secretariat and shall act under the supervision of the
Director-General.
43. The Director-General shall be appointed by the
Conference upon the recommendation of the Executive Council for
a term of four years, renewable for one further term, but not
thereafter.
44. The Director-General shall be responsible to the
Conference and the Executive Council for the appointment of the
staff and the organization and functioning of the Technical
Secretariat. The paramount consideration in the employment of
the staff and in the determination of the conditions of service
shall be the necessity of securing the highest standards of
efficiency, competence and integrity. Only citizens of States
Parties shall serve as the Director-General, as inspectors or
as other members of the professional and clerical staff. Due
regard shall be paid to the importance of recruiting the staff
on as wide a geographical basis as possible. Recruitment shall
be guided by the principle that the staff shall be kept to a
minimum necessary for the proper discharge of the
responsibilities of the Technical Secretariat.
45. The Director-General shall be responsible for the
organization and functioning of the Scientific Advisory Board
referred to in paragraph 21 (h). The Director-General shall, in
consultation with States Parties, appoint members of the
Scientific Advisory Board, who shall serve in their individual
capacity. The members of the Board shall be appointed on the
basis of their expertise in the particular scientific fields
relevant to the implementation of this Convention. The
Director-General may also, as appropriate, in consultation with
members of the Board, establish temporary working groups of
scientific experts to provide recommendations on specific
issues. In regard to the above, States Parties may submit lists
of experts to the Director-General.
46. In the performance of their duties, the Director-
General, the inspectors and the other members of the staff
shall not seek or receive instructions from any Government or
from any other source external to the Organization. They shall
refrain from any action that might reflect on their positions
as international officers responsible only to the Conference
and the Executive Council.
47. Each State Party shall respect the exclusively
international character of the responsibilities of the
Director-General, the inspectors and the other members of the
staff and not seek to influence them in the discharge of their
responsibilities.
E. Privileges and Immunities
48. The Organization shall enjoy on the territory and in
any other place under the jurisdiction or control of a State
Party such legal capacity and such privileges and immunities as
are necessary for the exercise of its functions.
49. Delegates of States Parties, together with their
alternates and advisers, representatives appointed to the
Executive Council together with their alternates and advisers,
the Director-General and the staff of the Organization shall
enjoy such privileges and immunities as are necessary in the
independent exercise of their functions in connection with the
Organization.
50. The legal capacity, privileges, and immunities referred
to in this Article shall be defined in agreements between the
Organization and the States Parties as well as in an agreement
between the Organization and the State in which the
headquarters of the Organization is seated. These agreements
shall be considered and approved by the Conference pursuant to
paragraph 21 (i).
51. Notwithstanding paragraphs 48 and 49, the privileges
and immunities enjoyed by the Director-General and the staff of
the Technical Secretariat during the conduct of verification
activities shall be those set forth in Part II, Section B, of
the Verification Annex.
ARTICLE IX
CONSULTATIONS, COOPERATION AND FACT-FINDING
1. States Parties shall consult and cooperate, directly
among themselves, or through the Organization or other
appropriate international procedures, including procedures
within the framework of the United Nations and in accordance
with its Charter, on any matter which may be raised relating to
the object and purpose, or the implementation of the
provisions, of this Convention.
2. Without prejudice to the right of any State Party to
request a challenge inspection, States Parties should, whenever
possible, first make every effort to clarify and resolve,
through exchange of information and consultations among
themselves, any matter which may cause doubt about compliance
with this Convention, or which gives rise to concerns about a
related matter which may be considered ambiguous. A State Party
which receives a request from another State Party for
clarification of any matter which the requesting State Party
believes causes such a doubt or concern shall provide the
requesting State Party as soon as possible, but in any case not
later than 10 days after the request, with information
sufficient to answer the doubt or concern raised along with an
explanation of how the information provided resolves the
matter. Nothing in this Convention shall affect the right of
any two or more States Parties to arrange by mutual consent for
inspections or any other procedures among themselves to clarify
and resolve any matter which may cause doubt about compliance
or gives rise to a concern about a related matter which may be
considered ambiguous. Such arrangements shall not affect the
rights and obligations of any State Party under other
provisions of this Convention.
Procedure for requesting clarification
3. A State Party shall have the right to request the
Executive Council to assist in clarifying any situation which
may be considered ambiguous or which gives rise to a concern
about the possible non-compliance of another State Party with
this Convention. The Executive Council shall provide
appropriate information in its possession relevant to such a
concern.
4. A State Party shall have the right to request the
Executive Council to obtain clarification from another State
Party on any situation which may be considered ambiguous or
which gives rise to a concern about its possible non-compliance
with this Convention. In such a case, the following shall
apply:
(a) The Executive Council shall forward the request
for clarification to the State Party concerned through
the Director-General not later than 24 hours after its
receipt;
(b) The requested State Party shall provide the
clarification to the Executive Council as soon as
possible, but in any case not later than 10 days after
the receipt of the request;
(c) The Executive Council shall take note of the
clarification and forward it to the requesting State
Party not later than 24 hours after its receipt;
(d) If the requesting State Party deems the
clarification to be inadequate, it shall have the right
to request the Executive Council to obtain from the
requested State Party further clarification;
(e) For the purpose of obtaining further
clarification requested under subparagraph (d), the
Executive Council may call on the Director-General to
establish a group of experts from the Technical
Secretariat, or if appropriate staff are not available
in the Technical Secretariat, from elsewhere, to
examine all available information and data relevant to
the situation causing the concern. The group of experts
shall submit a factual report to the Executive Council
on its findings;
(f) If the requesting State Party considers the
clarification obtained under subparagraphs (d) and (e)
to be unsatisfactory, it shall have the right to
request a special session of the Executive Council in
which States Parties involved that are not members of
the Executive Council shall be entitled to take part.
In such a special session, the Executive Council shall
consider the matter and may recommend any measure it
deems appropriate to resolve the situation.
5. A State Party shall also have the right to request the
Executive Council to clarify any situation which has been
considered ambiguous or has given rise to a concern about its
possible non-compliance with this Convention. The Executive
Council shall respond by providing such assistance as
appropriate.
6. The Executive Council shall inform the States Parties
about any request for clarification provided in this Article.
7. If the doubt or concern of a State Party about a
possible non-compliance has not been resolved within 60 days
after the submission of the request for clarification to the
Executive Council, or it believes its doubts warrant urgent
consideration, notwithstanding its right to request a challenge
inspection, it may request a special session of the Conference
in accordance with Article VIII, paragraph 12 (c). At such a
special session, the Conference shall consider the matter and
may recommend any measure it deems appropriate to resolve the
situation.
Procedures for challenge inspections
8. Each State Party has the right to request an on-site
challenge inspection of any facility or location in the
territory or in any other place under the jurisdiction or
control of any other State Party for the sole purpose of
clarifying and resolving any questions concerning possible non-
compliance with the provisions of this Convention, and to have
this inspection conducted anywhere without delay by an
inspection team designated by the Director-General and in
accordance with the Verification Annex.
9. Each State Party is under the obligation to keep the
inspection request within the scope of this Convention and to
provide in the inspection request all appropriate information
on the basis of which a concern has arisen regarding possible
non-compliance with this Convention as specified in the
Verification Annex. Each State Party shall refrain from
unfounded inspection requests, care being taken to avoid abuse.
The challenge inspection shall be carried out for the sole
purpose of determining facts relating to the possible non-
compliance.
10. For the purpose of verifying compliance with the
provisions of this Convention, each State Party shall permit
the Technical Secretariat to conduct the on-site challenge
inspection pursuant to paragraph 8.
11. Pursuant to a request for a challenge inspection of a
facility or location, and in accordance with the procedures
provided for in the Verification Annex, the inspected State
Party shall have:
(a) The right and the obligation to make every
reasonable effort to demonstrate its compliance with
this Convention and, to this end, to enable the
inspection team to fulfil its mandate;
(b) The obligation to provide access within the
requested site for the sole purpose of establishing
facts relevant to the concern regarding possible non-
compliance; and
(c) The right to take measures to protect sensitive
installations, and to prevent disclosure of
confidential information and data, not related to this
Convention.
12. With regard to an observer, the following shall apply:
(a) The requesting State Party may, subject to the
agreement of the inspected State Party, send a
representative who may be a national either of the
requesting State Party or of a third State Party, to
observe the conduct of the challenge inspection.
(b) The inspected State Party shall then grant access
to the observer in accordance with the Verification
Annex.
(c) The inspected State Party shall, as a rule,
accept the proposed observer, but if the inspected
State Party exercises a refusal, that fact shall be
recorded in the final report.
13. The requesting State Party shall present an inspection
request for an on-site challenge inspection to the Executive
Council and at the same time to the Director-General for
immediate processing.
14. The Director-General shall immediately ascertain that
the inspection request meets the requirements specified in Part
X, paragraph 4, of the Verification Annex, and, if necessary,
assist the requesting State Party in filing the inspection
request accordingly. When the inspection request fulfils the
requirements, preparations for the challenge inspection shall
begin.
15. The Director-General shall transmit the inspection
request to the inspected State Party not less than 12 hours
before the planned arrival of the inspection team at the point
of entry.
16. After having received the inspection request, the
Executive Council shall take cognizance of the Director-
General's actions on the request and shall keep the case under
its consideration throughout the inspection procedure. However,
its deliberations shall not delay the inspection process.
17. The Executive Council may, not later than 12 hours
after having received the inspection request, decide by a
three-quarter majority of all its members against carrying out
the challenge inspection, if it considers the inspection
request to be frivolous, abusive or clearly beyond the scope of
this Convention as described in paragraph 8. Neither the
requesting nor the inspected State Party shall participate in
such a decision. If the Executive Council decides against the
challenge inspection, preparations shall be stopped, no further
action on the inspection request shall be taken, and the States
Parties concerned shall be informed accordingly.
18. The Director-General shall issue an inspection mandate
for the conduct of the challenge inspection. The inspection
mandate shall be the inspection request referred to in
paragraphs 8 and 9 put into operational terms, and shall
conform with the inspection request.
19. The challenge inspection shall be conducted in
accordance with Part X or, in the case of alleged use, in
accordance with Part XI of the Verification Annex. The
inspection team shall be guided by the principle of conducting
the challenge inspection in the least intrusive manner
possible, consistent with the effective and timely
accomplishment of its mission.
20. The inspected State Party shall assist the inspection
team throughout the challenge inspection and facilitate its
task. If the inspected State Party proposes, pursuant to Part
X, Section C, of the Verification Annex, arrangements to
demonstrate compliance with this Convention, alternative to
full and comprehensive access, it shall make every reasonable
effort, through consultations with the inspection team, to
reach agreement on the modalities for establishing the facts
with the aim of demonstrating its compliance.
21. The final report shall contain the factual findings as
well as an assessment by the inspection team of the degree and
nature of access and cooperation granted for the satisfactory
implementation of the challenge inspection. The Director-
General shall promptly transmit the final report of the
inspection team to the requesting State Party, to the inspected
State Party, to the Executive Council and to all other States
Parties. The Director-General shall further transmit promptly
to the Executive Council the assessments of the requesting and
of the inspected States Parties, as well as the views of other
States Parties which may be conveyed to the Director-General
for that purpose, and then provide them to all States Parties.
22. The Executive Council shall, in accordance with its
powers and functions, review the final report of the inspection
team as soon as it is presented, and address any concerns as
to:
(a) Whether any non-compliance has occurred;
(b) Whether the request had been within the scope of
this Convention; and
(c) Whether the right to request a challenge
inspection had been abused.
23. If the Executive Council reaches the conclusion, in
keeping with its powers and functions, that further action may
be necessary with regard to paragraph 22, it shall take the
appropriate measures to redress the situation and to ensure
compliance with this Convention, including specific
recommendations to the Conference. In the case of abuse, the
Executive Council shall examine whether the requesting State
Party should bear any of the financial implications of the
challenge inspection.
24. The requesting State Party and the inspected State
Party shall have the right to participate in the review
process. The Executive Council shall inform the States Parties
and the next session of the Conference of the outcome of the
process.
25. If the Executive Council has made specific
recommendations to the Conference, the Conference shall
consider action in accordance with Article XII.
Article X
assistance and protection against chemical weapons
1. For the purposes of this Article, ``Assistance'' means
the coordination and delivery to States Parties of protection
against chemical weapons, including, inter alia, the following:
detection equipment and alarm systems; protective equipment;
decontamination equipment and decontaminants; medical antidotes
and treatments; and advice on any of these protective measures.
2. Nothing in this Convention shall be interpreted as
impeding the right of any State Party to conduct research into,
develop, produce, acquire, transfer or use means of protection
against chemical weapons, for purposes not prohibited under
this Convention.
3. Each State Party undertakes to facilitate, and shall
have the right to participate in, the fullest possible exchange
of equipment, material and scientific and technological
information concerning means of protection against chemical
weapons.
4. For the purposes of increasing the transparency of
national programmes related to protective purposes, each State
Party shall provide annually to the Technical Secretariat
information on its programme, in accordance with procedures to
be considered and approved by the Conference pursuant to
Article VIII, paragraph 21 (i).
5. The Technical Secretariat shall establish, not later
than 180 days after entry into force of this Convention and
maintain, for the use of any requesting State Party, a data
bank containing freely available information concerning various
means of protection against chemical weapons as well as such
information as may be provided by States Parties.
The Technical Secretariat shall also, within the resources
available to it, and at the request of a State Party, provide
expert advice and assist the State Party in identifying how its
programmes for the development and improvement of a protective
capacity against chemical weapons could be implemented.
6. Nothing in this Convention shall be interpreted as
impeding the right of States Parties to request and provide
assistance bilaterally and to conclude individual agreements
with other States Parties concerning the emergency procurement
of assistance.
7. Each State Party undertakes to provide assistance
through the Organization and to this end to elect to take one
or more of the following measures:
(a) To contribute to the voluntary fund for
assistance to be established by the Conference at its
first session;
(b) To conclude, if possible not later than 180 days
after this Convention enters into force for it,
agreements with the Organization concerning the
procurement, upon demand, of assistance;
(c) To declare, not later than 180 days after this
Convention enters into force for it, the kind of
assistance it might provide in response to an appeal by
the Organization. If, however, a State Party
subsequently is unable to provide the assistance
envisaged in its declaration, it is still under the
obligation to provide assistance in accordance with
this paragraph.
8. Each State Party has the right to request and, subject
to the procedures set forth in paragraphs 9, 10 and 11, to
receive assistance and protection against the use or threat of
use of chemical weapons if it considers that:
(a) Chemical weapons have been used against it;
(b) Riot control agents have been used against it as
a method of warfare; or
(c) It is threatened by actions or activities of any
State that are prohibited for States Parties by Article
I.
9. The request, substantiated by relevant information,
shall be submitted to the Director-General, who shall transmit
it immediately to the Executive Council and to all States
Parties. The Director-General shall immediately forward the
request to States Parties which have volunteered, in accordance
with paragraphs 7 (b) and (c), to dispatch emergency assistance
in case of use of chemical weapons or use of riot control
agents as a method of warfare, or humanitarian assistance in
case of serious threat of use of chemical weapons or serious
threat of use of riot control agents as a method of warfare to
the State Party concerned not later than 12 hours after receipt
of the request. The Director-General shall initiate, not later
than 24 hours after receipt of the request, an investigation in
order to provide foundation for further action. He shall
complete the investigation within 72 hours and forward a report
to the Executive Council. If additional time is required for
completion of the investigation, an interim report shall be
submitted within the same time-frame. The additional time
required for investigation shall not exceed 72 hours. It may,
however, be further extended by similar periods. Reports at the
end of each additional period shall be submitted to the
Executive Council. The investigation shall, as appropriate and
in conformity with the request and the information accompanying
the request, establish relevant facts related to the request as
well as the type and scope of supplementary assistance and
protection needed.
10. The Executive Council shall meet not later than 24
hours after receiving an investigation report to consider the
situation and shall take a decision by simple majority within
the following 24 hours on whether to instruct the Technical
Secretariat to provide supplementary assistance. The Technical
Secretariat shall immediately transmit to all States Parties
and relevant international organizations the investigation
report and the decision taken by the Executive Council. When so
decided by the Executive Council, the Director-General shall
provide assistance immediately. For this purpose, the Director-
General may cooperate with the requesting State Party, other
States Parties and relevant international organizations. The
States Parties shall make the fullest possible efforts to
provide assistance.
11. If the information available from the ongoing
investigation or other reliable sources would give sufficient
proof that there are victims of use of chemical weapons and
immediate action is indispensable, the Director-General shall
notify all States Parties and shall take emergency measures of
assistance, using the resources the Conference has placed at
his disposal for such contingencies. The Director-General shall
keep the Executive Council informed of actions undertaken
pursuant to this paragraph.
Article XI
economic and technological development
1. The provisions of this Convention shall be implemented
in a manner which avoids hampering the economic or
technological development of States Parties, and international
cooperation in the field of chemical activities for purposes
not prohibited under this Convention including the
international exchange of scientific and technical information
and chemicals and equipment for the production, processing or
use of chemicals for purposes not prohibited under this
Convention.
2. Subject to the provisions of this Convention and without
prejudice to the principles and applicable rules of
international law, the States Parties shall:
(a) Have the right, individually or collectively, to
conduct research with, to develop, produce, acquire,
retain, transfer, and use chemicals;
(b) Undertake to facilitate, and have the right to
participate in, the fullest possible exchange of
chemicals, equipment and scientific and technical
information relating to the development and application
of chemistry for purposes not prohibited under this
Convention;
(c) Not maintain among themselves any restrictions,
including those in any international agreements,
incompatible with the obligations undertaken under this
Convention, which would restrict or impede trade and
the development and promotion of scientific and
technological knowledge in the field of chemistry for
industrial, agricultural, research, medical,
pharmaceutical or other peaceful purposes;
(d) Not use this Convention as grounds for applying
any measures other than those provided for, or
permitted, under this Convention nor use any other
international agreement for pursuing an objective
inconsistent with this Convention;
(e) Undertake to review their existing national
regulations in the field of trade in chemicals in order
to render them consistent with the object and purpose
of this Convention.
Article XII
measures to redress a situation and to ensure compliance, including
sanctions
1. The Conference shall take the necessary measures, as set
forth in paragraphs 2, 3 and 4, to ensure compliance with this
Convention and to redress and remedy any situation which
contravenes the provisions of this Convention. In considering
action pursuant to this paragraph, the Conference shall take
into account all information and recommendations on the issues
submitted by the Executive Council.
2. In cases where a State Party has been requested by the
Executive Council to take measures to redress a situation
raising problems with regard to its compliance, and where the
State Party fails to fulfill the request within the specified
time, the Conference may, inter alia, upon the recommendation
of the Executive Council, restrict or suspend the State Party's
rights and privileges under this Convention until it undertakes
the necessary action to conform with its obligations under this
Convention.
3. In cases where serious damage to the object and purpose
of this Convention may result from activities prohibited under
this Convention, in particular by Article I, the Conference may
recommend collective measures to States Parties in conformity
with international law.
4. The Conference shall, in cases of particular gravity,
bring the issue, including relevant information and
conclusions, to the attention of the United Nations General
Assembly and the United Nations Security Council.
Article XIII
relation to other international agreements
Nothing in this Convention shall be interpreted as in any
way limiting or detracting from the obligations assumed by any
State under the Protocol for the Prohibition of the Use in War
of Asphyxiating, Poisonous or Other Gases, and of
Bacteriological Methods of Warfare, signed at Geneva on 17 June
1925, and under the Convention on the Prohibition of the
Development, Production and Stockpiling of Bacteriological
(Biological) and Toxin Weapons and on Their Destruction, signed
at London, Moscow and Washington on 10 April 1972.
Article XIV
settlement of disputes
1. Disputes that may arise concerning the application or
the interpretation of this Convention shall be settled in
accordance with the relevant provisions of this Convention and
in conformity with the provisions of the Charter of the United
Nations.
2. When a dispute arises between two or more States
Parties, or between one or more States Parties and the
Organization, relating to the interpretation or application of
this Convention, the parties concerned shall consult together
with a view to the expeditious settlement of the dispute by
negotiation or by other peaceful means of the parties' choice,
including recourse to appropriate organs of this Convention
and, by mutual consent, referral to the International Court of
Justice in conformity with the Statute of the Court. The States
Parties involved shall keep the Executive Council informed of
actions being taken.
3. The Executive Council may contribute to the settlement
of a dispute by whatever means it deems appropriate, including
offering its good offices, calling upon the States Parties to a
dispute to start the settlement process of their choice and
recommending a time-limit for any agreed procedure.
4. The Conference shall consider questions related to
disputes raised by States Parties or brought to its attention
by the Executive Council. The Conference shall, as it finds
necessary, establish or entrust organs with tasks related to
the settlement of these disputes in conformity with Article
VIII, paragraph 21 (f).
5. The Conference and the Executive Council are separately
empowered, subject to authorization from the General Assembly
of the United Nations, to request the International Court of
Justice to give an advisory opinion on any legal question
arising within the scope of the activities of the Organization.
An agreement between the Organization and the United Nations
shall be concluded for this purpose in accordance with Article
VIII, paragraph 34 (a).
6. This Article is without prejudice to Article IX or to
the provisions on measures to redress a situation and to ensure
compliance, including sanctions.
Article XV
amendments
1. Any State Party may propose amendments to this
Convention. Any State Party may also propose changes, as
specified in paragraph 4, to the Annexes of this Convention.
Proposals for amendments shall be subject to the procedures in
paragraphs 2 and 3. Proposals for changes, as specified in
paragraph 4, shall be subject to the procedures in paragraph 5.
2. The text of a proposed amendment shall be submitted to
the Director-General for circulation to all States Parties and
to the Depositary. The proposed amendment shall be considered
only by an Amendment Conference. Such an Amendment Conference
shall be convened if one third or more of the States Parties
notify the Director-General not later than 30 days after its
circulation that they support further consideration of the
proposal. The Amendment Conference shall be held immediately
following a regular session of the Conference unless the
requesting States Parties ask for an earlier meeting. In no
case shall an Amendment Conference be held less than 60 days
after the circulation of the proposed amendment.
3. Amendments shall enter into force for all States Parties
30 days after deposit of the instruments of ratification or
acceptance by all the States Parties referred to under
subparagraph (b) below:
(a) When adopted by the Amendment Conference by a
positive vote of a majority of all States Parties with
no State Party casting a negative vote; and
(b) Ratified or accepted by all those States Parties
casting a positive vote at the Amendment Conference.
4. In order to ensure the viability and the effectiveness
of this Convention, provisions in the Annexes shall be subject
to changes in accordance with paragraph 5, if proposed changes
are related only to matters of an administrative or technical
nature. All changes to the Annex on Chemicals shall be made in
accordance with paragraph 5. Sections A and C of the
Confidentiality Annex, Part X of the Verification Annex, and
those definitions in Part I of the Verification Annex which
relate exclusively to challenge inspections, shall not be
subject to changes in accordance with paragraph 5.
5. Proposed changes referred to in paragraph 4 shall be
made in accordance with the following procedures:
(a) The text of the proposed changes shall be
transmitted together with the necessary information to
the Director-General. Additional information for the
evaluation of the proposal may be provided by any State
Party and the Director-General. The Director-General
shall promptly communicate any such proposals and
information to all States Parties, the Executive
Council and the Depositary;
(b) Not later than 60 days after its receipt, the
Director-General shall evaluate the proposal to
determine all its possible consequences for the
provisions of this Convention and its implementation
and shall communicate any such information to all
States Parties and the Executive Council;
(c) The Executive Council shall examine the proposal
in the light of all information available to it,
including whether the proposal fulfils the requirements
of paragraph 4. Not later than 90 days after its
receipt, the Executive Council shall notify its
recommendation, with appropriate explanations, to all
States Parties for consideration. States Parties shall
acknowledge receipt within 10 days;
(d) If the Executive Council recommends to all States
Parties that the proposal be adopted, it shall be
considered approved if no State Party objects to it
within 90 days after receipt of the recommendation. If
the Executive Council recommends that the proposal be
rejected, it shall be considered rejected if no State
Party objects to the rejection within 90 days after
receipt of the recommendation;
(e) If a recommendation of the Executive Council does
not meet with the acceptance required under
subparagraph (d), a decision on the proposal, including
whether it fulfils the requirements of paragraph 4,
shall be taken as a matter of substance by the
Conference at its next session;
(f) The Director-General shall notify all States
Parties and the Depositary of any decision under this
paragraph;
(g) Changes approved under this procedure shall enter
into force for all States Parties 180 days after the
date of notification by the Director-General of their
approval unless another time period is recommended by
the Executive Council or decided by the Conference.
Article XVI
duration and withdrawal
1. This Convention shall be of unlimited duration.
2. Each State Party shall, in exercising its national
sovereignty, have the right to withdraw from this Convention if
it decides that extraordinary events, related to the subject-
matter of this Convention, have jeopardized the supreme
interests of its country. It shall give notice of such
withdrawal 90 days in advance to all other States Parties, the
Executive Council, the Depositary and the United Nations
Security Council. Such notice shall include a statement of the
extraordinary events it regards as having jeopardized its
supreme interests.
3. The withdrawal of a State Party from this Convention
shall not in any way affect the duty of States to continue
fulfilling the obligations assumed under any relevant rules of
international law, particularly the Geneva Protocol of 1925.
Article XVII
status of the annexes
The Annexes form an integral part of this Convention. Any
reference to this Convention includes the Annexes.
Article XVIII
signature
This Convention shall be open for signature for all States
before its entry into force.
Article XIX
ratification
This Convention shall be subject to ratification by States
Signatories according to their respective constitutional
processes.
Article XX
accession
Any State which does not sign this Convention before its
entry into force may accede to it at any time thereafter.
Article XXI
entry into force
1. This Convention shall enter into force 180 days after
the date of the deposit of the 65th instrument of ratification,
but in no case earlier than two years after its opening for
signature.
2. For States whose instruments of ratification or
accession are deposited subsequent to the entry into force of
this Convention, it shall enter into force on the 30th day
following the date of deposit of their instrument of
ratification or accession.
Article XXII
reservations
The Articles of this Convention shall not be subject to
reservations. The Annexes of this Convention shall not be
subject to reservations incompatible with its object and
purpose.
Article XXIII
depositary
The Secretary-General of the United Nations is hereby
designated as the Depositary of this Convention and shall,
inter alia:
(a) Promptly inform all signatory and acceding States
of the date of each signature, the date of deposit of
each instrument of ratification or accession and the
date of the entry into force of this Convention, and of
the receipt of other notices;
(b) Transmit duly certified copies of this Convention
to the Governments of all signatory and acceding
States; and
(c) Register this Convention pursuant to Article 102
of the Charter of the United Nations.
Article XXIV
authentic texts
This Convention, of which the Arabic, Chinese, English,
French, Russian and Spanish texts are equally authentic, shall
be deposited with the Secretary-General of the United Nations.
In Witness Whereof the undersigned, being duly authorized
to that effect, have signed this Convention.
Done at Paris on the thirteenth day of January, one
thousand nine hundred and ninety-three.
ANNEX ON CHEMICALS
A. GUIDELINES FOR SCHEDULES ON CHEMICALS
Guidelines for schedule 1
1. The following criteria shall be taken into account in
considering whether a toxic chemical or precursor should be
included in Schedule 1:
(a) It has been developed, produced, stockpiled or
used as a chemical weapon as defined in Article II;
(b) It poses otherwise a high risk to the object and
purpose of this Convention by virtue of its high
potential for use in activities prohibited under this
Convention because one or more of the following
conditions are met:
(i) It possesses a chemical structure closely
related to that of other toxic chemicals listed
in Schedule 1, and has, or can be expected to
have, comparable properties;
(ii) It possesses such lethal or
incapacitating toxicity as well as other
properties that would enable it to be used as a
chemical weapon;
(iii) It may be used as a precursor in the
final single technological stage of production
of a toxic chemical listed in Schedule 1,
regardless of whether this stage takes place in
facilities, in munitions or elsewhere;
(c) It has little or no use for purposes not
prohibited under this Convention.
Guidelines for schedule 2
2. The following criteria shall be taken into account in
considering whether a toxic chemical not listed in Schedule 1
or a precursor to a Schedule 1 chemical or to a chemical listed
in Schedule 2, part A, should be included in Schedule 2:
(a) It poses a significant risk to the object and
purpose of this Convention because it possesses such
lethal or incapacitating toxicity as well as other
properties that could enable it to be used as a
chemical weapon;
(b) It may be used as a precursor in one of the
chemical reactions at the final stage of formation of a
chemical listed in Schedule 1 or Schedule 2, part A;
(c) It poses a significant risk to the object and
purpose of this Convention by virtue of its importance
in the production of a chemical listed in Schedule 1 or
Schedule 2, part A;
(d) It is not produced in large commercial quantities
for purposes not prohibited under this Convention.
Guidelines for schedule 3
3. The following criteria shall be taken into account in
considering whether a toxic chemical or precursor, not listed
in other Schedules, should be included in Schedule 3:
(a) It has been produced, stockpiled or used as a
chemical weapon;
(b) It poses otherwise a risk to the object and
purpose of this Convention because it possesses such
lethal or incapacitating toxicity as well as other
properties that might enable it to be used as a
chemical weapon;
(c) It poses a risk to the object and purpose of this
Convention by virtue of its importance in the
production of one or more chemicals listed in Schedule
1 or Schedule 2, part B;
(d) It may be produced in large commercial quantities
for purposes not prohibited under this Convention.
B. SCHEDULES OF CHEMICALS
The following Schedules list toxic chemicals and their
precursors. For the purpose of implementing this Convention,
these Schedules identify chemicals for the application of
verification measures according to the provisions of the
Verification Annex. Pursuant to Article II, subparagraph 1 (a),
these Schedules do not constitute a definition of chemical
weapons.
(Whenever reference is made to groups of dialkylated
chemicals, followed by a list of alkyl groups in parentheses,
all chemicals possible by all possible combinations of alkyl
groups listed in the parentheses are considered as listed in
the respective Schedule as long as they are not explicitly
exempted. A chemical marked ``*'' on Schedule 2, part A, is
subject to special thresholds for declaration and verification,
as specified in Part VII of the Verification Annex.)
Schedule 1
(CAS registry number)
A. Toxic chemicals:
(1) O-Alkyl (10, incl. cycloalkyl) alkyl
(Me, Et, n-Pr or i-Pr)-phosphonofluoridates:
e.g. Sarin: O-Isopropyl
methylphosphonofluoridate..................... (107-44-8)
Soman: O-Pinacolyl methylphosphonofluoridate.... (96-64-0)
(2) O-Alkyl (>C10, incl. cycloalkyl) N,N-
dialkyl (Me, Et, n-Pr or i-Pr)
phosphoramidocyanidates:
e.g. Tabun: O-Ethyl N,N-dimethyl
phosphoramidocyanidate........................ (77-81-6)
(3) O-Alkyl (H or >C10, incl. cycloalkyl) S-2-
dialkyl (Me, Et, n-Pr or i-Pr)-aminoethyl alkyl
(Me, Et, n-Pr or i-Pr) phosphonothiolates and
corresponding alkylated or protonated salts:
e.g. VX: O-Ethyl S-2-diisopropylaminoethyl
methyl phosphonothiolate...................... (50782-69-9)
(4) Sulfur mustards:
2-Chloroethylchloromethylsulfide................ (2625-76-5)
Mustard gas: Bis(2-chloroethyl)sulfide.......... (505-60-2)
Bis(2-chloroethylthio)methane................... (63869-13-6)
Sesquimustard: 1,2-Bis(2-chloroethylthio)ethane. (3563-36-8)
1,3-Bis(2-chloroethylthio)-n-propane............ (63905-10-2)
1,4-Bis(2-chloroethylthio)-n-butane............. (142868-93-7)
1,5-Bis(2-chloroethylthio)-n-pentane............ (142868-94-8)
Bis(2-chloroethylthiomethyl)ether............... (63918-90-1)
O-Mustard: Bis(2-chloroethylthioethyl)ether.... (63918-89-8)
(5) Lewisites:
Lewisite 1: 2-Chlorovinyldichloroarsine......... (541-25-3)
Lewisite 2: Bis(2-chlorovinyl)chloroarsine..... (40334-69-8)
Lewisite 3: Tris(2-chlorovinyl)arsine.......... (40334-70-1)
(6) Nitrogen mustards:
HN1: Bis(2-chloroethyl)ethylamine............... (538-07-8)
HN2: Bis(2-chloroethyl)methylamine.............. (51-75-2)
HN3: Tris(2-chloroethyl)amine................... (555-77-1)
(7) Saxitoxin....................................... (35523-89-8)
(8) Ricin........................................... (9009-86-3)
B. Precursors:
(9) Alkyl (Me, Et, n-Pr or i-Pr)
phosphonyldifluorides:
e.g. DF: Methylphosphonyldifluoride............. (676-99-3)
(10) O-Alkyl (H or >C10, incl. cycloalkyl) O-2-
dialkyl (Me, Et, n-Pr or i-Pr)-aminoethyl alkyl
(Me, Et, n-Pr or i-Pr) phosphonites and
corresponding alkylated or protonated salts:
e.g. QL: O-Ethyl O-2-diisopropylaminoethyl
methylphosphonite............................. (57856-11-8)
(11) Chlorosarin: O-Isopropyl
methylphosphonochloridate......................... (1445-76-7)
(12) Chlorosoman: O-Pinacolyl
methylphosphonochloridate......................... (7040-57-5)
Schedule 2
A. Toxic chemicals:
(1) Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl]
phosphorothiolate and corresponding alkylated or
protonated salts.................................. (78-53-5)
(2)PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-
1-propene......................................... (382-21-8)
(3) BZ: 3-Quinuclidinyl benzilate (*)............... (6581-06-2)
B. Precursors:
(4) Chemicals, except for those listed in Schedule
1, containing a phosphorus atom to which is bonded
one methyl, ethyl or propyl (normal or iso) group
but not further carbon atoms:
e.g. Methylphosphonyl dichloride................ (676-97-1)
Dimethyl methylphosphonate...................... (756-79-6)
Exemption: Fonofos: O-Ethyl S-phenyl
ethylphosphonothiolothionate.................. (944-22-9)
(5) N,N-Dialkyl (Me, Et, n-Pr or i-Pr)
phosphoramidic dihalides:
(6) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl (Me,
Et, n-Pr or i-Pr)-phosphoramidates:
(7) Arsenic trichloride............................. (7784-34-1)
(8) 2,2-Diphenyl-2-hydroxyacetic acid............... (76-93-7)
(9) Quinuclidine-3-ol............................... (1619-34-7)
(10) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-
2-chlorides and corresponding protonated salts:
(11) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-
2-ols and corresponding protonated salts:
Exemptions: N,N-Dimethylaminoethanol and
corresponding protonated salts................ (108-01-0)
N,N-Diethylaminoethanol and corresponding
protonated salts.............................. (100-37-8)
(12) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-
2-thiols and corresponding protonated salts:
(13) Thiodiglycol: Bis(2-hydroxyethyl)sulfide....... (111-48-8)
(14) Pinacolyl alcohol: 3,3-Dimethylbutane-2-ol..... (464-07-3)
Schedule 3
A. Toxic chemicals:
(1) Phosgene: Carbonyl dichloride................... (75-44-5)
(2) Cyanogen chloride............................... (506-77-4)
(3) Hydrogen cyanide................................ (74-90-8)
(4) Chloropicrin: Trichloronitromethane............. (76-06-2)
B. Precursors:
(5) Phosphorus oxychloride.......................... (10025-87-3)
(6) Phosphorus trichloride.......................... (7719-12-2)
(7) Phosphorus pentachloride........................ (10026-13-8)
(8) Trimethyl phosphite............................. (121-45-9)
(9) Triethyl phosphite.............................. (122-52-1)
(10) Dimethyl phosphite............................. (868-85-9)
(11) Diethyl phosphite.............................. (762-04-9)
(12) Sulfur monochloride............................ (10025-67-9)
(13) Sulfur dichloride.............................. (10545-99-0)
(14) Thionyl chloride............................... (7719-09-7)
(15) Ethyldiethanolamine............................ (139-87-7)
(16) Methyldiethanolamine........................... (105-59-9)
(17) Triethanolamine................................ (102-71-6)
ANNEX ON IMPLEMENTATION AND VERIFICATION
(``VERIFICATION ANNEX'')
Part I
DEFINITIONS
1. ``Approved Equipment'' means the devices and instruments
necessary for the performance of the inspection team's duties
that have been certified by the Technical Secretariat in
accordance with regulations prepared by the Technical
Secretariat pursuant to Part II, paragraph 27 of this Annex.
Such equipment may also refer to the administrative supplies or
recording materials that would be used by the inspection team.
2. ``Building'' as referred to in the definition of
chemical weapons production facility in Article II comprises
specialized buildings and standard buildings.
(a) ``Specialized Building'' means:
(i) Any building, including underground
structures, containing specialized equipment in
a production or filling configuration;
(ii) Any building, including underground
structures, which has distinctive features
which distinguish it from buildings normally
used for chemical production or filling
activities not prohibited under this
Convention.
(b) ``Standard Building'' means any building,
including underground structures, constructed to
prevailing industry standards for facilities not
producing any chemical specified in Article II,
paragraph 8 (a) (i), or corrosive chemicals.
3. ``Challenge Inspection'' means the inspection of any
facility or location in the territory or in any other place
under the jurisdiction or control of a State Party requested by
another State Party pursuant to Article IX, paragraphs 8 to 25.
4. ``Discrete Organic Chemical'' means any chemical
belonging to the class of chemical compounds consisting of all
compounds of carbon except for its oxides, sulfides and metal
carbonates, identifiable by chemical name, by structural
formula, if known, and by Chemical Abstracts Service registry
number, if assigned.
5. ``Equipment'' as referred to in the definition of
chemical weapons production facility in Article II comprises
specialized equipment and standard equipment.
(a) ``Specialized Equipment'' means:
(i) The main production train, including any
reactor or equipment for product synthesis,
separation or purification, any equipment used
directly for heat transfer in the final
technological stage, such as in reactors or in
product separation, as well as any other
equipment which has been in contact with any
chemical specified in Article II, paragraph 8
(a) (i), or would be in contact with such a
chemical if the facility were operated;
(ii) Any chemical weapon filling machines;
(iii) Any other equipment specially designed,
built or installed for the operation of the
facility as a chemical weapons production
facility, as distinct from a facility
constructed according to prevailing commercial
industry standards for facilities not producing
any chemical specified in Article II, paragraph
8(a)(i), or corrosive chemicals, such as:
equipment made of high-nickel alloys or other
special corrosion-resistant material; special
equipment for waste control, waste treatment,
air filtering, or solvent recovery; special
containment enclosures and safety shields; non-
standard laboratory equipment used to analyze
toxic chemicals for chemical weapons purposes;
custom-designed process control panels; or
dedicated spares for specialized equipment.
(b) ``Standard Equipment'' means:
(i) Production equipment which is generally
used in the chemical industry and is not
included in the types of specialized equipment;
(ii) Other equipment commonly used in the
chemical industry, such as: fire-fighting
equipment; guard and security/safety
surveillance equipment; medical facilities,
laboratory facilities; or communications
equipment.
6. ``Facility'' in the context of Article VI means any of
the industrial sites as defined below (``plant site'',
``plant'' and ``unit'').
(a) ``Plant Site'' (Works, Factory) means the local
integration of one or more plants, with any
intermediate administrative levels, which are under one
operational control, and includes common
infrastructure, such as:
(i) Administration and other offices;
(ii) Repair and maintenance shops;
(iii) Medical center;
(iv) Utilities;
(v) Central analytical laboratory;
(vi) Research and development laboratories;
(vii) Central effluent and waste treatment
area; and
(viii) Warehouse storage.
(b) ``Plant'' (Production facility, Workshop) means a
relatively self-contained area, structure or building
containing one or more units with auxiliary and
associated infrastructure, such as:
(i) Small administrative section;
(ii) Storage/handling areas for feedstock and
products;
(iii) Effluent/waste handling/treatment area;
(iv) Control/analytical laboratory;
(v) First aid service/related medical
section; and
(vi) Records associated with the movement
into, around and from the site, of declared
chemicals and their feedstock or product
chemicals formed from them, as appropriate.
(c) ``Unit'' (Production unit, Process unit) means
the combination of those items of equipment, including
vessels and vessel set up, necessary for the
production, processing or consumption of a chemical.
7. ``Facility Agreement'' means an agreement or arrangement
between a State Party and the Organization relating to a
specific facility subject to on-site verification pursuant to
Articles IV, V and VI.
8. ``Host State'' means the State on whose territory lie
facilities or areas of another State, Party to this Convention,
which are subject to inspection under this Convention.
9. ``In-Country Escort'' means individuals specified by the
inspected State Party and, if appropriate, by the Host State,
if they so wish, to accompany and assist the inspection team
during the in-country period.
10. ``In-Country Period'' means the period from the arrival
of the inspection team at a point of entry until its departure
from the State at a point of entry.
11. ``Initial Inspection'' means the first on-site
inspection of facilities to verify declarations submitted
pursuant to Articles III, IV, V and VI and this Annex.
12. ``Inspected State Party'' means the State Party on
whose territory or in any other place under its jurisdiction or
control an inspection pursuant to this Convention takes place,
or the State Party whose facility or area on the territory of a
Host State is subject to such an inspection; it does not,
however, include the State Party specified in Part II,
paragraph 21 of this Annex.
13. ``Inspection Assistant'' means an individual designated
by the Technical Secretariat as set forth in Part II, Section
A, of this Annex to assist inspectors in an inspection or
visit, such as medical, security and administrative personnel
and interpreters.
14. ``Inspection Mandate'' means the instructions issued by
the Director-General to the inspection team for the conduct of
a particular inspection.
15. ``Inspection Manual'' means the compilation of
additional procedures for the conduct of inspections developed
by the Technical Secretariat.
16. ``Inspection Site'' means any facility or area at which
an inspection is carried out and which is specifically defined
in the respective facility agreement or inspection request or
mandate or inspection request as expanded by the alternative or
final perimeter.
17. ``Inspection Team'' means the group of inspectors and
inspection assistants assigned by the Director-General to
conduct a particular inspection.
18. ``Inspector'' means an individual designated by the
Technical Secretariat according to the procedures as set forth
in Part II, Section A, of this Annex, to carry out an
inspection or visit in accordance with this Convention.
19. ``Model Agreement'' means a document specifying the
general form and content for an agreement concluded between a
State Party and the Organization for fulfilling the
verification provisions specified in this Annex.
20. ``Observer'' means a representative of a requesting
State Party or a third State Party to observe a challenge
inspection.
21. ``Perimeter'' in case of challenge inspection means the
external boundary of the inspection site, defined by either
geographic coordinates or description on a map.
(a) ``Requested Perimeter'' means the inspection site
perimeter as specified in conformity with Part X,
paragraph 8, of this Annex;
(b) ``Alternative Perimeter'' means the inspection
site perimeter as specified, alternatively to the
requested perimeter, by the inspected State Party; it
shall conform to the requirements specified in Part X,
paragraph 17, of this Annex;
(c) ``Final Perimeter'' means the final inspection
site perimeter as agreed in negotiations between the
inspection team and the inspected State Party, in
accordance with Part X, paragraphs 16 to 21, of this
Annex;
(d) ``Declared Perimeter'' means the external
boundary of the facility declared pursuant to Articles
III, IV, V and VI.
22. ``Period of Inspection'', for the purposes of Article
IX, means the period of time from provision of access to the
inspection team to the inspection site until its departure from
the inspection site, exclusive of time spent on briefings
before and after the verification activities.
23. ``Period of Inspection'', for the purposes of Articles
IV, V and VI, means the period of time from arrival of the
inspection team at the inspection site until its departure from
the inspection site, exclusive of time spent on briefings
before and after the verification activities.
24. ``Point of Entry''/''Point of Exit'' means a location
designated for the in-country arrival of inspection teams for
inspections pursuant to this Convention or for their departure
after completion of their mission.
25. ``Requesting State Party'' means a State Party which
has requested a challenge inspection pursuant to Article IX.
26. ``Tonne'' means metric ton, i.e. 1,000 kg.
Part II
general rules of verification
A. Designation of inspectors and inspection assistants
1. Not later than 30 days after entry into force of this
Convention the Technical Secretariat shall communicate, in
writing, to all States Parties the names, nationalities and
ranks of the inspectors and inspection assistants proposed for
designation, as well as a description of their qualifications
and professional experiences.
2. Each State Party shall immediately acknowledge receipt
of the list of inspectors and inspection assistants, proposed
for designation communicated to it. The State Party shall
inform the Technical Secretariat in writing of its acceptance
of each inspector and inspection assistant, not later than 30
days after acknowledgement of receipt of the list. Any
inspector and inspection assistant included in this list shall
be regarded as designated unless a State Party, not later than
30 days after acknowledgement of receipt of the list, declares
its non-acceptance in writing. The State Party may include the
reason for the objection.
In the case of non-acceptance, the proposed inspector or
inspection assistant shall not undertake or participate in
verification activities on the territory or in any other place
under the jurisdiction or control of the State Party which has
declared its non-acceptance. The Technical Secretariat shall,
as necessary, submit further proposals in addition to the
original list.
3. Verification activities under this Convention shall only
be performed by designated inspectors and inspection
assistants.
4. Subject to the provisions of paragraph 5, a State Party
has the right at any time to object to an inspector or
inspection assistant who has already been designated. It shall
notify the Technical Secretariat of its objection in writing
and may include the reason for the objection. Such objection
shall come into effect 30 days after receipt by the Technical
Secretariat. The Technical Secretariat shall immediately inform
the State Party concerned of the withdrawal of the designation
of the inspector or inspection assistant.
5. A State Party that has been notified of an inspection
shall not seek to have removed from the inspection team for
that inspection any of the designated inspectors or inspection
assistants named in the inspection team list.
6. The number of inspectors or inspection assistants
accepted by and designated to a State Party must be sufficient
to allow for availability and rotation of appropriate numbers
of inspectors and inspection assistants.
7. If, in the opinion of the Director-General, the non-
acceptance of proposed inspectors or inspection assistants
impedes the designation of a sufficient number of inspectors or
inspection assistants or otherwise hampers the effective
fulfillment of the tasks of the Technical Secretariat, the
Director-General shall refer the issue to the Executive
Council.
8. Whenever amendments to the above-mentioned lists of
inspectors and inspection assistants are necessary or
requested, replacement inspectors and inspection assistants
shall be designated in the same manner as set forth with
respect to the initial list.
9. The members of the inspection team carrying out an
inspection of a facility of a State Party located on the
territory of another State Party shall be designated in
accordance with the procedures set forth in this Annex as
applied both to the inspected State Party and the Host State
Party.
B. Privileges and immunities
10. Each State Party shall, not later than 30 days after
acknowledgement of receipt of the list of inspectors and
inspection assistants or of changes thereto, provide multiple
entry/exit and/or transit visas and other such documents to
enable each inspector or inspection assistant to enter and to
remain on the territory of that State Party for the purpose of
carrying out inspection activities. These documents shall be
valid for at least two years after their provision to the
Technical Secretariat.
11. To exercise their functions effectively, inspectors and
inspection assistants shall be accorded privileges and
immunities as set forth in subparagraphs (a) to (i). Privileges
and immunities shall be granted to members of the inspection
team for the sake of this Convention and not for the personal
benefit of the individuals themselves. Such privileges and
immunities shall be accorded to them for the entire period
between arrival on and departure from the territory of the
inspected State Party or Host State, and thereafter with
respect to acts previously performed in the exercise of their
official functions.
(a) The members of the inspection team shall be
accorded the inviolability enjoyed by diplomatic agents
pursuant to Article 29 of the Vienna Convention on
Diplomatic Relations of 18 April 1961.
(b) The living quarters and office premises occupied
by the inspection team carrying out inspection
activities pursuant to this Convention shall be
accorded the inviolability and protection accorded to
the premises of diplomatic agents pursuant to Article
30, paragraph 1 of the Vienna Convention on Diplomatic
Relations.
(c) The papers and correspondence, including records,
of the inspection team shall enjoy the inviolability
accorded to all papers and correspondence of diplomatic
agents pursuant to Article 30, paragraph 2, of the
Vienna Convention on Diplomatic Relations. The
inspection team shall have the right to use codes for
their communications with the Technical Secretariat.
(d) Samples and approved equipment carried by members
of the inspection team shall be inviolable subject to
provisions contained in this Convention and exempt from
all customs duties. Hazardous samples shall be
transported in accordance with relevant regulations.
(e) The members of the inspection team shall be
accorded the immunities accorded to diplomatic agents
pursuant to Article 31, paragraphs 1, 2 and 3, of the
Vienna Convention on Diplomatic Relations.
(f) The members of the inspection team carrying out
prescribed activities pursuant to this Convention shall
be accorded the exemption from dues and taxes accorded
to diplomatic agents pursuant to Article 34 of the
Vienna Convention on Diplomatic Relations.
(g) The members of the inspection team shall be
permitted to bring into the territory of the inspected
State Party or Host State Party, without payment of any
customs duties or related charges, articles for
personal use, with the exception of articles the import
or export of which is prohibited by law or controlled
by quarantine regulations.
(h) The members of the inspection team shall be
accorded the same currency and exchange facilities as
are accorded to representatives of foreign Governments
on temporary official missions.
(i) The members of the inspection team shall not
engage in any professional or commercial activity for
personal profit on the territory of the inspected State
Party or the Host State.
12. When transiting the territory of non-inspected States
Parties, the members of the inspection team shall be accorded
the privileges and immunities enjoyed by diplomatic agents
pursuant to Article 40, paragraph 1, of the Vienna Convention
on Diplomatic Relations. Papers and correspondence, including
records, and samples and approved equipment, carried by them,
shall be accorded the privileges and immunities set forth in
paragraph 11 (c) and (d).
13. Without prejudice to their privileges and immunities
the members of the inspection team shall be obliged to respect
the laws and regulations of the inspected State Party or Host
State and, to the extent that is consistent with the inspection
mandate, shall be obliged not to interfere in the internal
affairs of that State. If the inspected State Party or Host
State Party considers that there has been an abuse of
privileges and immunities specified in this Annex,
consultations shall be held between the State Party and the
Director-General to determine whether such an abuse has
occurred and, if so determined, to prevent a repetition of such
an abuse.
14. The immunity from jurisdiction of members of the
inspection team may be waived by the Director-General in those
cases when the Director-General is of the opinion that immunity
would impede the course of justice and that it can be waived
without prejudice to the implementation of the provisions of
this Convention. Waiver must always be express.
15. Observers shall be accorded the same privileges and
immunities accorded to inspectors pursuant to this section,
except for those accorded pursuant to paragraph 11 (d).
C. Standing arrangements
Points of entry
16. Each State Party shall designate the points of entry
and shall supply the required information to the Technical
Secretariat not later than 30 days after this Convention enters
into force for it. These points of entry shall be such that the
inspection team can reach any inspection site from at least one
point of entry within 12 hours. Locations of points of entry
shall be provided to all States Parties by the Technical
Secretariat.
17. Each State Party may change the points of entry by
giving notice of such change to the Technical Secretariat.
Changes shall become effective 30 days after the Technical
Secretariat receives such notification to allow appropriate
notification to all States Parties.
18. If the Technical Secretariat considers that there are
insufficient points of entry for the timely conduct of
inspections or that changes to the points of entry proposed by
a State Party would hamper such timely conduct of inspections,
it shall enter into consultations with the State Party
concerned to resolve the problem.
19. In cases where facilities or areas of an inspected
State Party are located on the territory of a Host State Party
or where the access from the point of entry to the facilities
or areas subject to inspection requires transit through the
territory of another State Party, the inspected State Party
shall exercise the rights and fulfil the obligations concerning
such inspections in accordance with this Annex. The Host State
Party shall facilitate the inspection of those facilities or
areas and shall provide for the necessary support to enable the
inspection team to carry out its tasks in a timely and
effective manner. States Parties through whose territory
transit is required to inspect facilities or areas of an
inspected State Party shall facilitate such transit.
20. In cases where facilities or areas of an inspected
State Party are located on the territory of a State not Party
to this Convention, the inspected State Party shall take all
necessary measures to ensure that inspections of those
facilities or areas can be carried out in accordance with the
provisions of this Annex. A State Party that has one or more
facilities or areas on the territory of a State not Party to
this Convention shall take all necessary measures to ensure
acceptance by the Host State of inspectors and inspection
assistants designated to that State Party. If an inspected
State Party is unable to ensure access, it shall demonstrate
that it took all necessary measures to ensure access.
21. In cases where the facilities or areas sought to be
inspected are located on the territory of a State Party, but in
a place under the jurisdiction or control of a State not Party
to this Convention, the State Party shall take all necessary
measures as would be required of an inspected State Party and a
Host State Party to ensure that inspections of such facilities
or areas can be carried out in accordance with the provisions
of this Annex. If the State Party is unable to ensure access to
those facilities or areas, it shall demonstrate that it took
all necessary measures to ensure access. This paragraph shall
not apply where the facilities or areas sought to be inspected
are those of the State Party.
Arrangements for use of nonscheduled aircraft
22. For inspections pursuant to Article IX and for other
inspections where timely travel is not feasible using scheduled
commercial transport, an inspection team may need to utilize
aircraft owned or chartered by the Technical Secretariat. Not
later than 30 days after this Convention enters into force for
it, each State Party shall inform the Technical Secretariat of
the standing diplomatic clearance number for non-scheduled
aircraft transporting inspection teams and equipment necessary
for inspection into and out of the territory in which an
inspection site is located. Aircraft routings to and from the
designated point of entry shall be along established
international airways that are agreed upon between the States
Parties and the Technical Secretariat as the basis for such
diplomatic clearance.
23. When a non-scheduled aircraft is used, the Technical
Secretariat shall provide the inspected State Party with a
flight plan, through the National Authority, for the aircraft's
flight from the last airfield prior to entering the airspace of
the State in which the inspection site is located to the point
of entry, not less than six hours before the scheduled
departure time from that airfield. Such a plan shall be filed
in accordance with the procedures of the International Civil
Aviation Organization applicable to civil aircraft. For its
owned or chartered flights, the Technical Secretariat shall
include in the remarks section of each flight plan the standing
diplomatic clearance number and the appropriate notation
identifying the aircraft as an inspection aircraft.
24. Not less than three hours before the scheduled
departure of the inspection team from the last airfield prior
to entering the airspace of the State in which the inspection
is to take place, the inspected State Party or Host State Party
shall ensure that the flight plan filed in accordance with
paragraph 23 is approved so that the inspection team may arrive
at the point of entry by the estimated arrival time.
25. The inspected State Party shall provide parking,
security protection, servicing and fuel as required by the
Technical Secretariat for the aircraft of the inspection team
at the point of entry when such aircraft is owned or chartered
by the Technical Secretariat. Such aircraft shall not be liable
for landing fees, departure tax, and similar charges. The
Technical Secretariat shall bear the cost of such fuel,
security protection and servicing.
Administrative arrangements
26. The inspected State Party shall provide or arrange for
the amenities necessary for the inspection team such as
communication means, interpretation services to the extent
necessary for the performance of interviewing and other tasks,
transportation, working space, lodging, meals and medical care.
In this regard, the inspected State Party shall be reimbursed
by the Organization for such costs incurred by the inspection
team.
Approved equipment
27. Subject to paragraph 29, there shall be no restriction
by the inspected State Party on the inspection team bringing
onto the inspection site such equipment, approved in accordance
with paragraph 28, which the Technical Secretariat has
determined to be necessary to fulfil the inspection
requirements. The Technical Secretariat shall prepare and, as
appropriate, update a list of approved equipment, which may be
needed for the purposes described above, and regulations
governing such equipment which shall be in accordance with this
Annex. In establishing the list of approved equipment and these
regulations, the Technical Secretariat shall ensure that safety
considerations for all the types of facilities at which such
equipment is likely to be used, are taken fully into account. A
list of approved equipment shall be considered and approved by
the Conference pursuant to Article VIII, paragraph 21 (i).
28. The equipment shall be in the custody of the Technical
Secretariat and be designated, calibrated and approved by the
Technical Secretariat. The Technical Secretariat shall, to the
extent possible, select that equipment which is specifically
designed for the specific kind of inspection required.
Designated and approved equipment shall be specifically
protected against unauthorized alteration.
29. The inspected State Party shall have the right, without
prejudice to the prescribed time-frames, to inspect the
equipment in the presence of inspection team members at the
point of entry, i.e., to check the identity of the equipment
brought in or removed from the territory of the inspected State
Party or the Host State. To facilitate such identification, the
Technical Secretariat shall attach documents and devices to
authenticate its designation and approval of the equipment. The
inspection of the equipment shall also ascertain to the
satisfaction of the inspected State Party that the equipment
meets the description of the approved equipment for the
particular type of inspection. The inspected State Party may
exclude equipment not meeting that description or equipment
without the above-mentioned authentication documents and
devices. Procedures for the inspection of equipment shall be
considered and approved by the Conference pursuant to Article
VIII, paragraph 21 (i).
30. In cases where the inspection team finds it necessary
to use equipment available on site not belonging to the
Technical Secretariat and requests the inspected State Party to
enable the team to use such equipment, the inspected State
Party shall comply with the request to the extent it can.
D. Preinspection activities
Notification
31. The Director-General shall notify the State Party
before the planned arrival of the inspection team at the point
of entry and within the prescribed time-frames, where
specified, of its intention to carry out an inspection.
32. Notifications made by the Director-General shall
include the following information:
(a) The type of inspection;
(b) The point of entry;
(c) The date and estimated time of arrival at the
point of entry;
(d) The means of arrival at the point of entry;
(e) The site to be inspected;
(f) The names of inspectors and inspection
assistants;
(g) If appropriate, aircraft clearance for special
flights.
33. The inspected State Party shall acknowledge the receipt
of a notification by the Technical Secretariat of an intention
to conduct an inspection, not later than one hour after receipt
of such notification.
34. In the case of an inspection of a facility of a State
Party located on the territory of another State Party, both
States Parties shall be simultaneously notified in accordance
with paragraphs 31 and 32.
Entry into the territory of the inspected State party or
host State and transfer to the inspection site
35. The inspected State Party or Host State Party which has
been notified of the arrival of an inspection team, shall
ensure its immediate entry into the territory and shall through
an in-country escort or by other means do everything in its
power to ensure the safe conduct of the inspection team and its
equipment and supplies, from its point of entry to the
inspection site(s) and to a point of exit.
36. The inspected State Party or Host State Party shall, as
necessary, assist the inspection team in reaching the
inspection site not later than 12 hours after the arrival at
the point of entry.
Pre-inspection briefing
37. Upon arrival at the inspection site and before the
commencement of the inspection, the inspection team shall be
briefed by facility representatives, with the aid of maps and
other documentation as appropriate, on the facility, the
activities carried out there, safety measures and
administrative and logistic arrangements necessary for the
inspection. The time spent for the briefing shall be limited to
the minimum necessary and in any event not exceed three hours.
E. Conduct of Inspections
General rules
38. The members of the inspection team shall discharge
their functions in accordance with the provisions of this
Convention, as well as rules established by the Director-
General and facility agreements concluded between States
Parties and the Organization.
39. The inspection team shall strictly observe the
inspection mandate issued by the Director-General. It shall
refrain from activities going beyond this mandate.
40. The activities of the inspection team shall be so
arranged as to ensure the timely and effective discharge of its
functions and the least possible inconvenience to the inspected
State Party or Host State and disturbance to the facility or
area inspected. The inspection team shall avoid unnecessarily
hampering or delaying the operation of a facility and avoid
affecting its safety. In particular, the inspection team shall
not operate any facility. If inspectors consider that, to
fulfil their mandate, particular operations should be carried
out in a facility, they shall request the designated
representative of the inspected facility to have them
performed. The representative shall carry out the request to
the extent possible.
41. In the performance of their duties on the territory of
an inspected State Party or Host State, the members of the
inspection team shall, if the inspected State Party so
requests, be accompanied by representatives of the inspected
State Party, but the inspection team must not thereby be
delayed or otherwise hindered in the exercise of its functions.
42. Detailed procedures for the conduct of inspections
shall be developed for inclusion in the inspection manual by
the Technical Secretariat, taking into account guidelines to be
considered and approved by the Conference pursuant to Article
VIII, paragraph 21 (i).
Safety
43. In carrying out their activities, inspectors and
inspection assistants shall observe safety regulations
established at the inspection site, including those for the
protection of controlled environments within a facility and for
personal safety. In order to implement these requirements,
appropriate detailed procedures shall be considered and
approved by the Conference pursuant to Article VIII, paragraph
21 (i).
Communications
44. Inspectors shall have the right throughout the in-
country period to communicate with the Headquarters of the
Technical Secretariat. For this purpose they may use their own,
duly certified, approved equipment and may request that the
inspected State Party or Host State Party provide them with
access to other telecommunications. The inspection team shall
have the right to use its own two-way system of radio
communications between personnel patrolling the perimeter and
other members of the inspection team.
Inspection team and inspected State party rights
45. The inspection team shall, in accordance with the
relevant Articles and Annexes of this Convention as well as
with facility agreements and procedures set forth in the
inspection manual, have the right to unimpeded access to the
inspection site. The items to be inspected will be chosen by
the inspectors.
46. Inspectors shall have the right to interview any
facility personnel in the presence of representatives of the
inspected State Party with the purpose of establishing relevant
facts. Inspectors shall only request information and data which
are necessary for the conduct of the inspection, and the
inspected State Party shall furnish such information upon
request. The inspected State Party shall have the right to
object to questions posed to the facility personnel if those
questions are deemed not relevant to the inspection. If the
head of the inspection team objects and states their relevance,
the questions shall be provided in writing to the inspected
State Party for reply. The inspection team may note any refusal
to permit interviews or to allow questions to be answered and
any explanations given, in that part of the inspection report
that deals with the cooperation of the inspected State Party.
47. Inspectors shall have the right to inspect
documentation and records they deem relevant to the conduct of
their mission.
48. Inspectors shall have the right to have photographs
taken at their request by representatives of the inspected
State Party or of the inspected facility. The capability to
take instant development photographic prints shall be
available. The inspection team shall determine whether
photographs conform to those requested and, if not, repeat
photographs shall be taken. The inspection team and the
inspected State Party shall each retain one copy of every
photograph.
49. The representatives of the inspected State Party shall
have the right to observe all verification activities carried
out by the inspection team.
50. The inspected State Party shall receive copies, at its
request, of the information and data gathered about its
facility(ies) by the Technical Secretariat.
51. Inspectors shall have the right to request
clarifications in connection with ambiguities that arise during
an inspection. Such requests shall be made promptly through the
representative of the inspected State Party. The representative
of the inspected State Party shall provide the inspection team,
during the inspection, with such clarification as may be
necessary to remove the ambiguity. If questions relating to an
object or a building located within the inspection site are not
resolved, the object or building shall, if requested, be
photographed for the purpose of clarifying its nature and
function. If the ambiguity cannot be removed during the
inspection, the inspectors shall notify the Technical
Secretariat immediately. The inspectors shall include in the
inspection report any such unresolved question, relevant
clarifications, and a copy of any photographs taken.
Collection, handling and analysis of samples
52. Representatives of the inspected State Party or of the
inspected facility shall take samples at the request of the
inspection team in the presence of inspectors. If so agreed in
advance with the representatives of the inspected State Party
or of the inspected facility, the inspection team may take
samples itself.
53. Where possible, the analysis of samples shall be
performed on-site. The inspection team shall have the right to
perform on-site analysis of samples using approved equipment
brought by it. At the request of the inspection team, the
inspected State Party shall, in accordance with agreed
procedures, provide assistance for the analysis of samples on-
site. Alternatively, the inspection team may request that
appropriate analysis on-site be performed in its presence.
54. The inspected State Party has the right to retain
portions of all samples taken or take duplicate samples and be
present when samples are analyzed on-site.
55. The inspection team shall, if it deems it necessary,
transfer samples for analysis off-site at laboratories
designated by the Organization.
56. The Director-General shall have the primary
responsibility for the security, integrity and preservation of
samples and for ensuring that the confidentiality of samples
transferred for analysis off-site is protected. The Director-
General shall do so in accordance with procedures, to be
considered and approved by the Conference pursuant to Article
VIII, paragraph 21 (i), for inclusion in the inspection manual.
He shall:
(a) Establish a stringent regime governing the
collection, handling, transport and analysis of
samples;
(b) Certify the laboratories designated to perform
different types of analysis;
(c) Oversee the standardization of equipment and
procedures at these designated laboratories, mobile
analytical equipment and procedures, and monitor
quality control and overall standards in relation to
the certification of these laboratories, mobile
equipment and procedures; and
(d) Select from among the designated laboratories
those which shall perform analytical or other functions
in relation to specific investigations.
57. When off-site analysis is to be performed, samples
shall be analysed in at least two designated laboratories. The
Technical Secretariat shall ensure the expeditious processing
of the analysis. The samples shall be accounted for by the
Technical Secretariat and any unused samples or portions
thereof shall be returned to the Technical Secretariat.
58. The Technical Secretariat shall compile the results of
the laboratory analysis of samples relevant to compliance with
this Convention and include them in the final inspection
report. The Technical Secretariat shall include in the report
detailed information concerning the equipment and methodology
employed by the designated laboratories.
Extension of inspection duration
59. Periods of inspection may be extended by agreement with
the representative of the inspected State Party.
Debriefing
60. Upon completion of an inspection the inspection team
shall meet with representatives of the inspected State Party
and the personnel responsible for the inspection site to review
the preliminary findings of the inspection team and to clarify
any ambiguities. The inspection team shall provide to the
representatives of the inspected State Party its preliminary
findings in written form according to a standardized format,
together with a list of any samples and copies of written
information and data gathered and other material to be taken
off-site. The document shall be signed by the head of the
inspection team. In order to indicate that he has taken notice
of the contents of the document, the representative of the
inspected State Party shall countersign the document. This
meeting shall be completed not later than 24 hours after the
completion of the inspection.
F. Departure
61. Upon completion of the post-inspection procedures, the
inspection team shall leave, as soon as possible, the territory
of the inspected State Party or the Host State.
G. Reports
62. Not later than 10 days after the inspection, the
inspectors shall prepare a factual, final report on the
activities conducted by them and on their findings. It shall
only contain facts relevant to compliance with this Convention,
as provided for under the inspection mandate. The report shall
also provide information as to the manner in which the State
Party inspected cooperated with the inspection team. Differing
observations made by inspectors may be attached to the report.
The report shall be kept confidential.
63. The final report shall immediately be submitted to the
inspected State Party. Any written comments, which the
inspected State Party may immediately make on its findings
shall be annexed to it. The final report together with annexed
comments made by the inspected State Party shall be submitted
to the Director-General not later than 30 days after the
inspection.
64. Should the report contain uncertainties, or should
cooperation between the National Authority and the inspectors
not measure up to the standards required, the Director-General
shall approach the State Party for clarification.
65. If the uncertainties cannot be removed or the facts
established are of a nature to suggest that obligations
undertaken under this Convention have not been met, the
Director-General shall inform the Executive Council without
delay.
H. Application of general provisions
66. The provisions of this Part shall apply to all
inspections conducted pursuant to this Convention, except where
the provisions of this Part differ from the provisions set
forth for specific types of inspections in Parts III to XI of
this Annex, in which case the latter provisions shall take
precedence.
Part III
GENERAL PROVISIONS FOR VERIFICATION MEASURES PURSUANT TO ARTICLES IV, V
AND VI, PARAGRAPH 3
A. Initial inspections and facility agreements
1. Each declared facility subject to on-site inspection
pursuant to Articles IV, V, and VI, paragraph 3, shall receive
an initial inspection promptly after the facility is declared.
The purpose of this inspection of the facility shall be to
verify information provided and to obtain any additional
information needed for planning future verification activities
at the facility, including on-site inspections and continuous
monitoring with on-site instruments, and to work on the
facility agreements.
2. States Parties shall ensure that the verification of
declarations and the initiation of the systematic verification
measures can be accomplished by the Technical Secretariat at
all facilities within the established time-frames after this
Convention enters into force for them.
3. Each State Party shall conclude a facility agreement
with the Organization for each facility declared and subject to
on-site inspection pursuant to Articles IV, V, and VI,
paragraph 3.
4. Facility agreements shall be completed not later than
180 days after this Convention enters into force for the State
Party or after the facility has been declared for the first
time, except for a chemical weapons destruction facility to
which paragraphs 5 to 7 shall apply.
5. In the case of a chemical weapons destruction facility
that begins operations more than one year after this Convention
enters into force for the State Party, the facility agreement
shall be completed not less than 180 days before the facility
begins operation.
6. In the case of a chemical weapons destruction facility
that is in operation when this Convention enters into force for
the State Party, or begins operation not later than one year
thereafter, the facility agreement shall be completed not later
than 210 days after this Convention enters into force for the
State Party, except that the Executive Council may decide that
transitional verification arrangements, approved in accordance
with Part IV (A), paragraph 51, of this Annex and including a
transitional facility agreement, provisions for verification
through on-site inspection and monitoring with on-site
instruments, and the time-frame for application of the
arrangements, are sufficient.
7. In the case of a facility, referred to in paragraph 6,
that will cease operations not later than two years after this
Convention enters into force for the State Party, the Executive
Council may decide that transitional verification arrangements,
approved in accordance with Part IV (A), paragraph 51, of this
Annex and including a transitional facility agreement,
provisions for verification through on-site inspection and
monitoring with on-site instruments, and the time-frame for
application of the arrangements, are sufficient.
8. Facility agreements shall be based on models for such
agreements and provide for detailed arrangements which shall
govern inspections at each facility. The model agreements shall
include provisions to take into account future technological
developments and shall be considered and approved by the
Conference pursuant to Article VIII, paragraph 21 (i).
9. The Technical Secretariat may retain at each site a
sealed container for photographs, plans and other information
that it may wish to refer to in the course of subsequent
inspections.
B. Standing arrangements
10. Where applicable, the Technical Secretariat shall have
the right to have continuous monitoring instruments and systems
and seals installed and to use them, in conformity with the
relevant provisions in this Convention and the facility
agreements between States Parties and the Organization.
11. The inspected State Party shall, in accordance with
agreed procedures, have the right to inspect any instrument
used or installed by the inspection team and to have it tested
in the presence of representatives of the inspected State
Party. The inspection team shall have the right to use the
instruments that were installed by the inspected State Party
for its own monitoring of the technological process of the
destruction of chemical weapons. To this end, the inspection
team shall have the right to inspect those instruments that it
intends to use for purposes of verification of the destruction
of chemical weapons and to have them tested in its presence.
12. The inspected State Party shall provide the necessary
preparation and support for the establishment of continuous
monitoring instruments and systems.
13. In order to implement paragraphs 11 and 12, appropriate
detailed procedures shall be considered and approved by the
Conference pursuant to Article VIII, paragraph 21 (i).
14. The inspected State Party shall immediately notify the
Technical Secretariat if an event occurs or may occur at a
facility where monitoring instruments are installed, which may
have an impact on the monitoring system. The inspected State
Party shall coordinate subsequent actions with the Technical
Secretariat with a view to restoring the operation of the
monitoring system and establishing interim measures, if
necessary, as soon as possible.
15. The inspection team shall verify during each inspection
that the monitoring system functions correctly and that
emplaced seals have not been tampered with. In addition, visits
to service the monitoring system may be required to perform any
necessary maintenance or replacement of equipment, or to adjust
the coverage of the monitoring system as required.
16. If the monitoring system indicates any anomaly, the
Technical Secretariat shall immediately take action to
determine whether this resulted from equipment malfunction or
activities at the facility. If, after this examination, the
problem remains unresolved, the Technical Secretariat shall
immediately ascertain the actual situation, including through
immediate on-site inspection of, or visit to, the facility if
necessary. The Technical Secretariat shall report any such
problem immediately after its detection to the inspected State
Party which shall assist in its resolution.
C. Pre-inspection activities
17. The inspected State Party shall, except as specified in
paragraph 18, be notified of inspections not less than 24 hours
in advance of the planned arrival of the inspection team at the
point of entry.
18. The inspected State Party shall be notified of initial
inspections not less than 72 hours in advance of the estimated
time of arrival of the inspection team at the point of entry.
Part IV (A)
destruction of chemical weapons and its verification pursuant to
article iv
A. Declarations
Chemical weapons
1. The declaration of chemical weapons by a State Party
pursuant to Article III, paragraph 1 (a) (ii), shall include
the following:
(a) The aggregate quantity of each chemical declared;
(b) The precise location of each chemical weapons
storage facility, expressed by:
(i) Name;
(ii) Geographical coordinates; and
(iii) A detailed site diagram, including a
boundary map and the location of bunkers/
storage areas within the facility.
(c) The detailed inventory for each chemical weapons
storage facility including:
(i) Chemicals defined as chemical weapons in
accordance with Article II;
(ii) Unfilled munitions, sub-munitions,
devices and equipment defined as chemical
weapons;
(iii) Equipment specially designed for use
directly in connection with the employment of
munitions, sub-munitions, devices or equipment
specified in sub-subparagraph (ii);
(iv) Chemicals specifically designed for use
directly in connection with the employment of
munitions, sub-munitions, devices or equipment
specified in sub-subparagraph (ii).
2. For the declaration of chemicals referred to in
paragraph 1 (c) (i) the following shall apply:
(a) Chemicals shall be declared in accordance with
the Schedules specified in the Annex on Chemicals;
(b) For a chemical not listed in the Schedules in the
Annex on Chemicals the information required for
possible assignment of the chemical to the appropriate
Schedule shall be provided, including the toxicity of
the pure compound. For a precursor, the toxicity and
identity of the principal final reaction product(s)
shall be provided;
(c) Chemicals shall be identified by chemical name in
accordance with current International Union of Pure and
Applied Chemistry (IUPAC) nomenclature, structural
formula and Chemical Abstracts Service registry number,
if assigned. For a precursor, the toxicity and identity
of the principal final reaction product(s) shall be
provided;
(d) In cases involving mixtures of two or more
chemicals, each chemical shall be identified and the
percentage of each shall be provided, and the mixture
shall be declared under the category of the most toxic
chemical. If a component of a binary chemical weapon
consists of a mixture of two or more chemicals, each
chemical shall be identified and the percentage of each
provided;
(e) Binary chemical weapons shall be declared under
the relevant end product within the framework of the
categories of chemical weapons referred to in paragraph
16. The following supplementary information shall be
provided for each type of binary chemical munition/
device:
(i) The chemical name of the toxic end-
product;
(ii) The chemical composition and quantity of
each component;
(iii) The actual weight ratio between the
components;
(iv) Which component is considered the key
component;
(v) The projected quantity of the toxic end-
product calculated on a stoichiometric basis
from the key component, assuming 100 per cent
yield. A declared quantity (in tonnes) of the
key component intended for a specific toxic
end-product shall be considered equivalent to
the quantity (in tonnes) of this toxic end-
product calculated on a stoichiometric basis
assuming 100 per cent yield.
(f) For multicomponent chemical weapons, the
declaration shall be analogous to that envisaged for
binary chemical weapons;
(g) For each chemical the form of storage, i.e.
munitions, sub-munitions, devices, equipment or bulk
containers and other containers shall be declared. For
each form of storage the following shall be listed:
(i) Type;
(ii) Size or calibre;
(iii) Number of items; and
(iv) Nominal weight of chemical fill per
item.
(h) For each chemical the total weight present at the
storage facility shall be declared;
(i) In addition, for chemicals stored in bulk, the
percentage purity shall be declared, if known.
3. For each type of unfilled munitions, sub-munitions,
devices or equipment, referred to in paragraph 1 (c) (ii), the
information shall include:
(a) The number of items;
(b) The nominal fill volume per item;
(c) The intended chemical fill.
Declarations of chemical weapons pursuant to article III,
paragraph 1 (a) (iii)
4. The declaration of chemical weapons pursuant to Article
III, paragraph 1 (a) (iii), shall contain all information
specified in paragraphs 1 to 3 above. It is the responsibility
of the State Party on whose territory the chemical weapons are
located to make appropriate arrangements with the other State
to ensure that the declarations are made. If the State Party on
whose territory the chemical weapons are located is not able to
fulfil its obligations under this paragraph, it shall state the
reasons therefor.
Declarations of past transfers and receipts
5. A State Party that has transferred or received chemical
weapons since 1 January 1946 shall declare these transfers or
receipts pursuant to Article III, paragraph 1 (a) (iv),
provided the amount transferred or received exceeded 1 tonne
per chemical per year in bulk and/or munition form. This
declaration shall be made according to the inventory format
specified in paragraphs 1 and 2. This declaration shall also
indicate the supplier and recipient countries, the dates of the
transfers or receipts and, as precisely as possible, the
current location of the transferred items. When not all the
specified information is available for transfers or receipts of
chemical weapons for the period between 1 January 1946 and 1
January 1970, the State Party shall declare whatever
information is still available to it and provide an explanation
as to why it cannot submit a full declaration.
Submission of the general plan for destruction of chemical
weapons
6. The general plan for destruction of chemical weapons
submitted pursuant to Article III, paragraph 1 (a) (v), shall
provide an overview of the entire national chemical weapons
destruction programme of the State Party and information on the
efforts of the State Party to fulfil the destruction
requirements contained in this Convention. The plan shall
specify:
(a) A general schedule for destruction, giving types
and approximate quantities of chemical weapons planned
to be destroyed in each annual destruction period for
each existing chemical weapons destruction facility
and, if possible, for each planned chemical weapons
destruction facility;
(b) The number of chemical weapons destruction
facilities existing or planned to be operated over the
destruction period;
(c) For each existing or planned chemical weapons
destruction facility:
(i) Name and location; and
(ii) The types and approximate quantities of
chemical weapons, and the type (for example,
nerve agent or blister agent) and approximate
quantity of chemical fill, to be destroyed;
(d) The plans and programmes for training personnel
for the operation of destruction facilities;
(e) The national standards for safety and emissions
that the destruction facilities must satisfy;
(f) Information on the development of new methods for
destruction of chemical weapons and on the improvement
of existing methods;
(g) The cost estimates for destroying the chemical
weapons; and
(h) Any issues which could adversely impact on the
national destruction programme.
B. Measures to secure the storage facility and storage
facility preparation
7. Not later than when submitting its declaration of
chemical weapons, a State Party shall take such measures as it
considers appropriate to secure its storage facilities and
shall prevent any movement of its chemical weapons out of the
facilities, except their removal for destruction.
8. A State Party shall ensure that chemical weapons at its
storage facilities are configured to allow ready access for
verification in accordance with paragraphs 37 to 49.
9. While a storage facility remains closed for any movement
of chemical weapons out of the facility other than their
removal for destruction, a State Party may continue at the
facility standard maintenance activities, including standard
maintenance of chemical weapons; safety monitoring and physical
security activities; and preparation of chemical weapons for
destruction.
10. Maintenance activities of chemical weapons shall not
include:
(a) Replacement of agent or of munition bodies;
(b) Modification of the original characteristics of
munitions, or parts or components thereof.
11. All maintenance activities shall be subject to
monitoring by the Technical Secretariat.
C. Destruction
Principles and methods for destruction of chemical weapons
12. ``Destruction of chemical weapons'' means a process by
which chemicals are converted in an essentially irreversible
way to a form unsuitable for production of chemical weapons,
and which in an irreversible manner renders munitions and other
devices unusable as such.
13. Each State Party shall determine how it shall destroy
chemical weapons, except that the following processes may not
be used: dumping in any body of water, land burial or open-pit
burning. It shall destroy chemical weapons only at specifically
designated and appropriately designed and equipped facilities.
14. Each State Party shall ensure that its chemical weapons
destruction facilities are constructed and operated in a manner
to ensure the destruction of the chemical weapons; and that the
destruction process can be verified under the provisions of
this Convention.
Order of destruction
15. The order of destruction of chemical weapons is based
on the obligations specified in Article I and the other
Articles, including obligations regarding systematic on-site
verification. It takes into account interests of States Parties
for undiminished security during the destruction period;
confidence-building in the early part of the destruction stage;
gradual acquisition of experience in the course of destroying
chemical weapons; and applicability irrespective of the actual
composition of the stockpiles and the methods chosen for the
destruction of the chemical weapons. The order of destruction
is based on the principle of levelling out.
16. For the purpose of destruction, chemical weapons
declared by each State Party shall be divided into three
categories:
Category 1: Chemical weapons on the basis of Schedule
1 chemicals and their parts and components;
Category 2: Chemical weapons on the basis of all
other chemicals and their parts and components;
Category 3: Unfilled munitions and devices, and
equipment specifically designed for use directly in
connection with employment of chemical weapons.
17. A State Party shall start:
(a) The destruction of Category 1 chemical weapons
not later than two years after this Convention enters
into force for it, and shall complete the destruction
not later than 10 years after entry into force of this
Convention. A State Party shall destroy chemical
weapons in accordance with the following destruction
deadlines:
(i) Phase 1: Not later than two years after
entry into force of this Convention, testing of
its first destruction facility shall be
completed. Not less than 1 per cent of the
Category 1 chemical weapons shall be destroyed
not later than three years after the entry into
force of this Convention;
(ii) Phase 2: Not less than 20 per cent of
the Category 1 chemical weapons shall be
destroyed not later than five years after the
entry into force of this Convention;
(iii) Phase 3: Not less than 45 per cent of
the Category 1 chemical weapons shall be
destroyed not later than seven years after the
entry into force of this Convention;
(iv) Phase 4: All Category 1 chemical weapons
shall be destroyed not later than 10 years
after the entry into force of this Convention.
(b) The destruction of Category 2 chemical weapons
not later than one year after this Convention enters
into force for it and shall complete the destruction
not later than five years after the entry into force of
this Convention. Category 2 chemical weapons shall be
destroyed in equal annual increments throughout the
destruction period. The comparison factor for such
weapons is the weight of the chemicals within Category
2; and
(c) The destruction of Category 3 chemical weapons
not later than one year after this Convention enters
into force for it, and shall complete the destruction
not later than five years after the entry into force of
this Convention. Category 3 chemical weapons shall be
destroyed in equal annual increments throughout the
destruction period. The comparison factor for unfilled
munitions and devices is expressed in nominal fill
volume (m\3\) and for equipment in number of items.
18. For the destruction of binary chemical weapons the
following shall apply:
(a) For the purposes of the order of destruction, a
declared quantity (in tonnes) of the key component
intended for a specific toxic end-product shall be
considered equivalent to the quantity (in tonnes) of
this toxic end-product calculated on a stoichiometric
basis assuming 100 per cent yield.
(b) A requirement to destroy a given quantity of the
key component shall entail a requirement to destroy a
corresponding quantity of the other component,
calculated from the actual weight ratio of the
components in the relevant type of binary chemical
munition/device.
(c) If more of the other component is declared than
is needed, based on the actual weight ratio between
components, the excess shall be destroyed over the
first two years after destruction operations begin.
(d) At the end of each subsequent operational year a
State Party may retain an amount of the other declared
component that is determined on the basis of the actual
weight ratio of the components in the relevant type of
binary chemical munition/device.
19. For multicomponent chemical weapons the order of
destruction shall be analogous to that envisaged for binary
chemical weapons.
Modification of intermediate destruction deadlines
20. The Executive Council shall review the general plans
for destruction of chemical weapons, submitted pursuant to
Article III, paragraph 1 (a) (v), and in accordance with
paragraph 6, inter alia, to assess their conformity with the
order of destruction set forth in paragraphs 15 to 19. The
Executive Council shall consult with any State Party whose plan
does not conform, with the objective of bringing the plan into
conformity.
21. If a State Party, due to exceptional circumstances
beyond its control, believes that it cannot achieve the level
of destruction specified for Phase 1, Phase 2 or Phase 3 of the
order of destruction of Category 1 chemical weapons, it may
propose changes in those levels. Such a proposal must be made
not later than 120 days after the entry into force of this
Convention and shall contain a detailed explanation of the
reasons for the proposal.
22. Each State Party shall take all necessary measures to
ensure destruction of Category 1 chemical weapons in accordance
with the destruction deadlines set forth in paragraph 17 (a) as
changed pursuant to paragraph 21. However, if a State Party
believes that it will be unable to ensure the destruction of
the percentage of Category 1 chemical weapons required by an
intermediate destruction deadline, it may request the Executive
Council to recommend to the Conference to grant an extension of
its obligation to meet that deadline. Such a request must be
made not less than 180 days before the intermediate destruction
deadline and shall contain a detailed explanation of the
reasons for the request and the plans of the State Party for
ensuring that it will be able to fulfil its obligation to meet
the next intermediate destruction deadline.
23. If an extension is granted, the State Party shall still
be under the obligation to meet the cumulative destruction
requirements set forth for the next destruction deadline.
Extensions granted pursuant to this Section shall not, in any
way, modify the obligation of the State Party to destroy all
Category 1 chemical weapons not later than 10 years after the
entry into force of this Convention.
Extension of the deadline for completion of destruction
24. If a State Party believes that it will be unable to
ensure the destruction of all Category 1 chemical weapons not
later than 10 years after the entry into force of this
Convention, it may submit a request to the Executive Council
for an extension of the deadline for completing the destruction
of such chemical weapons. Such a request must be made not later
than nine years after the entry into force of this Convention.
25. The request shall contain:
(a) The duration of the proposed extension;
(b) A detailed explanation of the reasons for the
proposed extension; and
(c) A detailed plan for destruction during the
proposed extension and the remaining portion of the
original 10-year period for destruction.
26. A decision on the request shall be taken by the
Conference at its next session, on the recommendation of the
Executive Council. Any extension shall be the minimum
necessary, but in no case shall the deadline for a State Party
to complete its destruction of all chemical weapons be extended
beyond 15 years after the entry into force of this Convention.
The Executive Council shall set conditions for the granting of
the extension, including the specific verification measures
deemed necessary as well as specific actions to be taken by the
State Party to overcome problems in its destruction programme.
Costs of verification during the extension period shall be
allocated in accordance with Article IV, paragraph 16.
27. If an extension is granted, the State Party shall take
appropriate measures to meet all subsequent deadlines.
28. The State Party shall continue to submit detailed
annual plans for destruction in accordance with paragraph 29
and annual reports on the destruction of Category 1 chemical
weapons in accordance with paragraph 36, until all Category 1
chemical weapons are destroyed. In addition, not later than at
the end of each 90 days of the extension period, the State
Party shall report to the Executive Council on its destruction
activity. The Executive Council shall review progress towards
completion of destruction and take the necessary measures to
document this progress. All information concerning the
destruction activities during the extension period shall be
provided by the Executive Council to States Parties, upon
request.
Detailed annual plans for destruction
29. The detailed annual plans for destruction shall be
submitted to the Technical Secretariat not less than 60 days
before each annual destruction period begins pursuant to
Article IV, paragraph 7 (a), and shall specify:
(a) The quantity of each specific type of chemical
weapon to be destroyed at each destruction facility and
the inclusive dates when the destruction of each
specific type of chemical weapon will be accomplished;
(b) The detailed site diagram for each chemical
weapons destruction facility and any changes to
previously submitted diagrams; and
(c) The detailed schedule of activities for each
chemical weapons destruction facility for the upcoming
year, identifying time required for design,
construction or modification of the facility,
installation of equipment, equipment check-out and
operator training, destruction operations for each
specific type of chemical weapon, and scheduled periods
of inactivity.
30. A State Party shall provide, for each of its chemical
weapons destruction facilities, detailed facility information
to assist the Technical Secretariat in developing preliminary
inspection procedures for use at the facility.
31. The detailed facility information for each destruction
facility shall include the following information:
(a) Name, address and location;
(b) Detailed, annotated facility drawings;
(c) Facility design drawings, process drawings, and
piping and instrumentation design drawings;
(d) Detailed technical descriptions, including design
drawings and instrument specifications, for the
equipment required for: removing the chemical fill from
the munitions, devices, and containers; temporarily
storing the drained chemical fill; destroying the
chemical agent; and destroying the munitions, devices,
and containers;
(e) Detailed technical descriptions of the
destruction process, including material flow rates,
temperatures and pressures, and designed destruction
efficiency;
(f) Design capacity for each specific type of
chemical weapon;
(g) A detailed description of the products of
destruction and the method of their ultimate disposal;
(h) A detailed technical description of measures to
facilitate inspections in accordance with this
Convention;
(i) A detailed description of any temporary holding
area at the destruction facility that will be used to
provide chemical weapons directly to the destruction
facility, including site and facility drawings and
information on the storage capacity for each specific
type of chemical weapon to be destroyed at the
facility;
(j) A detailed description of the safety and medical
measures in force at the facility;
(k) A detailed description of the living quarters and
working premises for the inspectors; and
(l) Suggested measures for international
verification.
32. A State Party shall provide, for each of its chemical
weapons destruction facilities, the plant operations manuals,
the safety and medical plans, the laboratory operations and
quality assurance and control manuals, and the environmental
permits that have been obtained, except that this shall not
include material previously provided.
33. A State Party shall promptly notify the Technical
Secretariat of any developments that could affect inspection
activities at its destruction facilities.
34. Deadlines for submission of the information specified
in paragraphs 30 to 32 shall be considered and approved by the
Conference pursuant to Article VIII, paragraph 21 (i).
35. After a review of the detailed facility information for
each destruction facility, the Technical Secretariat, if the
need arises, shall enter into consultation with the State Party
concerned in order to ensure that its chemical weapons
destruction facilities are designed to assure the destruction
of chemical weapons, to allow advanced planning on how
verification measures may be applied and to ensure that the
application of verification measures is consistent with proper
facility operation, and that the facility operation allows
appropriate verification.
Annual reports on destruction
36. Information regarding the implementation of plans for
destruction of chemical weapons shall be submitted to the
Technical Secretariat pursuant to Article IV, paragraph 7 (b),
not later than 60 days after the end of each annual destruction
period and shall specify the actual amounts of chemical weapons
which were destroyed during the previous year at each
destruction facility. If appropriate, reasons for not meeting
destruction goals should be stated.
D. Verification
Verification of declarations of chemical weapons through
on-site inspection
37. The purpose of the verification of declarations of
chemical weapons shall be to confirm through on-site inspection
the accuracy of the relevant declarations made pursuant to
Article III.
38. The inspectors shall conduct this verification promptly
after a declaration is submitted. They shall, inter alia,
verify the quantity and identity of chemicals, types and number
of munitions, devices and other equipment.
39. The inspectors shall employ, as appropriate, agreed
seals, markers or other inventory control procedures to
facilitate an accurate inventory of the chemical weapons at
each storage facility.
40. As the inventory progresses, inspectors shall install
such agreed seals as may be necessary to clearly indicate if
any stocks are removed, and to ensure the securing of the
storage facility during the inventory. After completion of the
inventory, such seals will be removed unless otherwise agreed.
Systematic verification of storage facilities
41. The purpose of the systematic verification of storage
facilities shall be to ensure that no undetected removal of
chemical weapons from such facilities takes place.
42. The systematic verification shall be initiated as soon
as possible after the declaration of chemical weapons is
submitted and shall continue until all chemical weapons have
been removed from the storage facility. It shall in accordance
with the facility agreement, combine on-site inspection and
monitoring with on-site instruments.
43. When all chemical weapons have been removed from the
storage facility, the Technical Secretariat shall confirm the
declaration of the State Party to that effect. After this
confirmation, the Technical Secretariat shall terminate the
systematic verification of the storage facility and shall
promptly remove any monitoring instruments installed by the
inspectors.
Inspections and visits
44. The particular storage facility to be inspected shall
be chosen by the Technical Secretariat in such a way as to
preclude the prediction of precisely when the facility is to be
inspected. The guidelines for determining the frequency of
systematic on-site inspections shall be elaborated by the
Technical Secretariat, taking into account the recommendations
to be considered and approved by the Conference pursuant to
Article VIII, paragraph 21 (i).
45. The Technical Secretariat shall notify the inspected
State Party of its decision to inspect or visit the storage
facility 48 hours before the planned arrival of the inspection
team at the facility for systematic inspections or visits. In
cases of inspections or visits to resolve urgent problems, this
period may be shortened. The Technical Secretariat shall
specify the purpose of the inspection or visit.
46. The inspected State Party shall make any necessary
preparations for the arrival of the inspectors and shall ensure
their expeditious transportation from their point of entry to
the storage facility. The facility agreement will specify
administrative arrangements for inspectors.
47. The inspected State Party shall provide the inspection
team upon its arrival at the chemical weapons storage facility
to carry out an inspection, with the following data on the
facility:
(a) The number of storage buildings and storage
locations;
(b) For each storage building and storage location,
the type and the identification number or designation,
shown on the site diagram; and
(c) For each storage building and storage location at
the facility, the number of items of each specific type
of chemical weapon, and, for containers that are not
part of binary munitions, the actual quantity of
chemical fill in each container.
48. In carrying out an inventory, within the time
available, inspectors shall have the right:
(a) To use any of the following inspection
techniques:
(i) inventory all the chemical weapons stored
at the facility;
(ii) inventory all the chemical weapons
stored in specific buildings or locations at
the facility, as chosen by the inspectors; or
(iii) inventory all the chemical weapons of
one or more specific types stored at the
facility, as chosen by the inspectors; and
(b) To check all items inventoried against agreed
records.
49. Inspectors shall, in accordance with facility
agreements:
(a) Have unimpeded access to all parts of the storage
facilities including any munitions, devices, bulk
containers, or other containers therein. While
conducting their activity, inspectors shall comply with
the safety regulations at the facility. The items to be
inspected will be chosen by the inspectors; and
(b) Have the right, during the first and any
subsequent inspection of each chemical weapons storage
facility, to designate munitions, devices, and
containers from which samples are to be taken, and to
affix to such munitions, devices, and containers a
unique tag that will indicate an attempt to remove or
alter the tag. A sample shall be taken from a tagged
item at a chemical weapons storage facility or a
chemical weapons destruction facility as soon as it is
practically possible in accordance with the
corresponding destruction programmes, and, in any case,
not later than by the end of the destruction
operations.
Systematic verification of the destruction of chemical
weapons
50. The purpose of verification of destruction of chemical
weapons shall be:
(a) To confirm the identity and quantity of the
chemical weapons stocks to be destroyed; and
(b) To confirm that these stocks have been destroyed.
51. Chemical weapons destruction operations during the
first 390 days after the entry into force of this Convention
shall be governed by transitional verification arrangements.
Such arrangements, including a transitional facility agreement,
provisions for verification through on-site inspection and
monitoring with on-site instruments, and the time-frame for
application of the arrangements, shall be agreed between the
Organization and the inspected State Party. These arrangements
shall be approved by the Executive Council not later than 60
days after this Convention enters into force for the State
Party, taking into account the recommendations of the Technical
Secretariat, which shall be based on an evaluation of the
detailed facility information provided in accordance with
paragraph 31 and a visit to the facility. The Executive Council
shall, at its first session, establish the guidelines for such
transitional verification arrangements, based on
recommendations to be considered and approved by the Conference
pursuant to Article VIII, paragraph 21 (i). The transitional
verification arrangements shall be designed to verify,
throughout the entire transitional period, the destruction of
chemical weapons in accordance with the purposes set forth in
paragraph 50, and to avoid hampering ongoing destruction
operations.
52. The provisions of paragraphs 53 to 61 shall apply to
chemical weapons destruction operations that are to begin not
earlier than 390 days after the entry into force of this
Convention.
53. On the basis of this Convention and the detailed
destruction facility information, and as the case may be, on
experience from previous inspections, the Technical Secretariat
shall prepare a draft plan for inspecting the destruction of
chemical weapons at each destruction facility. The plan shall
be completed and provided to the inspected State Party for
comment not less than 270 days before the facility begins
destruction operations pursuant to this Convention. Any
differences between the Technical Secretariat and the inspected
State Party should be resolved through consultations. Any
unresolved matter shall be forwarded to the Executive Council
for appropriate action with a view to facilitating the full
implementation of this Convention.
54. The Technical Secretariat shall conduct an initial
visit to each chemical weapons destruction facility of the
inspected State Party not less than 240 days before each
facility begins destruction operations pursuant to this
Convention, to allow it to familiarize itself with the facility
and assess the adequacy of the inspection plan.
55. In the case of an existing facility where chemical
weapons destruction operations have already been initiated, the
inspected State Party shall not be required to decontaminate
the facility before the Technical Secretariat conducts an
initial visit. The duration of the visit shall not exceed five
days and the number of visiting personnel shall not exceed 15.
56. The agreed detailed plans for verification, with an
appropriate recommendation by the Technical Secretariat, shall
be forwarded to the Executive Council for review. The Executive
Council shall review the plans with a view to approving them,
consistent with verification objectives and obligations under
this Convention. It should also confirm that verification
schemes for destruction are consistent with verification aims
and are efficient and practical. This review should be
completed not less than 180 days before the destruction period
begins.
57. Each member of the Executive Council may consult with
the Technical Secretariat on any issues regarding the adequacy
of the plan for verification. If there are no objections by any
member of the Executive Council, the plan shall be put into
action.
58. If there are any difficulties, the Executive Council
shall enter into consultations with the State Party to
reconcile them. If any difficulties remain unresolved they
shall be referred to the Conference.
59. The detailed facility agreements for chemical weapons
destruction facilities shall specify, taking into account the
specific characteristics of the destruction facility and its
mode of operation:
(a) Detailed on-site inspection procedures; and
(b) Provisions for verification through continuous
monitoring with on-site instruments and physical
presence of inspectors.
60. Inspectors shall be granted access to each chemical
weapons destruction facility not less than 60 days before the
commencement of the destruction, pursuant to this Convention,
at the facility. Such access shall be for the purpose of
supervising the installation of the inspection equipment,
inspecting this equipment and testing its operation, as well as
for the purpose of carrying out a final engineering review of
the facility. In the case of an existing facility where
chemical weapons destruction operations have already been
initiated, destruction operations shall be stopped for the
minimum amount of time required, not to exceed 60 days, for
installation and testing of the inspection equipment. Depending
on the results of the testing and review, the State Party and
the Technical Secretariat may agree on additions or changes to
the detailed facility agreement for the facility.
61. The inspected State Party shall notify, in writing, the
inspection team leader at a chemical weapons destruction
facility not less than four hours before the departure of each
shipment of chemical weapons from a chemical weapons storage
facility to that destruction facility. This notification shall
specify the name of the storage facility, the estimated times
of departure and arrival, the specific types and quantities of
chemical weapons being transported, whether any tagged items
are being moved, and the method of transportation. This
notification may include notification of more than one
shipment. The inspection team leader shall be promptly
notified, in writing, of any changes in this information.
Chemical weapons storage facilities at chemical weapons
destruction facilities
62. The inspectors shall verify the arrival of the chemical
weapons at the destruction facility and the storing of these
chemical weapons. The inspectors shall verify the inventory of
each shipment, using agreed procedures consistent with facility
safety regulations, prior to the destruction of the chemical
weapons. They shall employ, as appropriate, agreed seals,
markers or other inventory control procedures to facilitate an
accurate inventory of the chemical weapons prior to
destruction.
63. As soon and as long as chemical weapons are stored at
chemical weapons storage facilities located at chemical weapons
destruction facilities, these storage facilities shall be
subject to systematic verification in conformity with the
relevant facility agreements.
64. At the end of an active destruction phase, inspectors
shall make an inventory of the chemical weapons, that have been
removed from the storage facility, to be destroyed. They shall
verify the accuracy of the inventory of the chemical weapons
remaining, employing inventory control procedures as referred
to in paragraph 62.
Systematic on-site verification measures at chemical
weapons destruction facilities
65. The inspectors shall be granted access to conduct their
activities at the chemical weapons destruction facilities and
the chemical weapons storage facilities located at such
facilities during the entire active phase of destruction.
66. At each chemical weapons destruction facility, to
provide assurance that no chemical weapons are diverted and
that the destruction process has been completed, inspectors
shall have the right to verify through their physical presence
and monitoring with on-site instruments:
(a) The receipt of chemical weapons at the facility;
(b) The temporary holding area for chemical weapons
and the specific type and quantity of chemical weapons
stored in that area;
(c) The specific type and quantity of chemical
weapons being destroyed;
(d) The process of destruction;
(e) The end-product of destruction;
(f) The mutilation of metal parts; and
(g) The integrity of the destruction process and of
the facility as a whole.
67. Inspectors shall have the right to tag, for sampling,
munitions, devices, or containers located in the temporary
holding areas at the chemical weapons destruction facilities.
68. To the extent that it meets inspection requirements,
information from routine facility operations, with appropriate
data authentication, shall be used for inspection purposes.
69. After the completion of each period of destruction, the
Technical Secretariat shall confirm the declaration of the
State Party, reporting the completion of destruction of the
designated quantity of chemical weapons.
70. Inspectors shall, in accordance with facility
agreements:
(a) Have unimpeded access to all parts of the
chemical weapons destruction facilities and the
chemical weapons storage facilities located at such
facilities, including any munitions, devices, bulk
containers, or other containers, therein. The items to
be inspected shall be chosen by the inspectors in
accordance with the verification plan that has been
agreed to by the inspected State Party and approved by
the Executive Council;
(b) Monitor the systematic on-site analysis of
samples during the destruction process; and
(c) Receive, if necessary, samples taken at their
request from any devices, bulk containers and other
containers at the destruction facility or the storage
facility thereat.
Part IV (B)
OLD CHEMICAL WEAPONS AND ABANDONED CHEMICAL WEAPONS
A. General
1. Old chemical weapons shall be destroyed as provided for
in Section B.
2. Abandoned chemical weapons, including those which also
meet the definition of Article II, paragraph 5 (b), shall be
destroyed as provided for in Section C.
B. Regime for old chemical weapons
3. A State Party which has on its territory old chemical
weapons as defined in Article II, paragraph 5 (a), shall, not
later than 30 days after this Convention enters into force for
it, submit to the Technical Secretariat all available relevant
information, including, to the extent possible, the location,
type, quantity and the present condition of these old chemical
weapons.
In the case of old chemical weapons as defined in Article
II, paragraph 5 (b), the State Party shall submit to the
Technical Secretariat a declaration pursuant to Article III,
paragraph 1 (b) (i), including, to the extent possible, the
information specified in Part IV (A), paragraphs 1 to 3, of
this Annex.
4. A State Party which discovers old chemical weapons after
this Convention enters into force for it shall submit to the
Technical Secretariat the information specified in paragraph 3
not later than 180 days after the discovery of the old chemical
weapons.
5. The Technical Secretariat shall conduct an initial
inspection, and any further inspections as may be necessary, in
order to verify the information submitted pursuant to
paragraphs 3 and 4 and in particular to determine whether the
chemical weapons meet the definition of old chemical weapons as
specified in Article II, paragraph 5. Guidelines to determine
the usability of chemical weapons produced between 1925 and
1946 shall be considered and approved by the Conference
pursuant to Article VIII, paragraph 21 (i).
6. A State Party shall treat old chemical weapons that have
been confirmed by the Technical Secretariat as meeting the
definition in Article II, paragraph 5 (a), as toxic waste. It
shall inform the Technical Secretariat of the steps being taken
to destroy or otherwise dispose of such old chemical weapons as
toxic waste in accordance with its national legislation.
7. Subject to paragraphs 3 to 5, a State Party shall
destroy old chemical weapons that have been confirmed by the
Technical Secretariat as meeting the definition in Article II,
paragraph 5 (b), in accordance with Article IV and Part IV (A)
of this Annex. Upon request of a State Party, the Executive
Council may, however, modify the provisions on time-limit and
order of destruction of these old chemical weapons, if it
determines that doing so would not pose a risk to the object
and purpose of this Convention. The request shall contain
specific proposals for modification of the provisions and a
detailed explanation of the reasons for the proposed
modification.
C. Regime for abandoned chemical weapons
8. A State Party on whose territory there are abandoned
chemical weapons (hereinafter referred to as the ``Territorial
State Party'') shall, not later than 30 days after this
Convention enters into force for it, submit to the Technical
Secretariat all available relevant information concerning the
abandoned chemical weapons. This information shall include, to
the extent possible, the location, type, quantity and the
present condition of the abandoned chemical weapons as well as
information on the abandonment.
9. A State Party which discovers abandoned chemical weapons
after this Convention enters into force for it shall, not later
than 180 days after the discovery, submit to the Technical
Secretariat all available relevant information concerning the
discovered abandoned chemical weapons. This information shall
include, to the extent possible, the location, type, quantity
and the present condition of the abandoned chemical weapons as
well as information on the abandonment.
10. A State Party which has abandoned chemical weapons on
the territory of another State Party (hereinafter referred to
as the ``Abandoning State Party'') shall, not later than 30
days after this Convention enters into force for it, submit to
the Technical Secretariat all available relevant information
concerning the abandoned chemical weapons. This information
shall include, to the extent possible, the location, type,
quantity as well as information on the abandonment, and the
condition of the abandoned chemical weapons.
11. The Technical Secretariat shall conduct an initial
inspection, and any further inspections as may be necessary, in
order to verify all available relevant information submitted
pursuant to paragraphs 8 to 10 and determine whether systematic
verification in accordance with Part IV (A), paragraphs 41 to
43, of this Annex is required. It shall, if necessary, verify
the origin of the abandoned chemical weapons and establish
evidence concerning the abandonment and the identity of the
Abandoning State.
12. The report of the Technical Secretariat shall be
submitted to the Executive Council, the Territorial State
Party, and to the Abandoning State Party or the State Party
declared by the Territorial State Party or identified by the
Technical Secretariat as having abandoned the chemical weapons.
If one of the States Parties directly concerned is not
satisfied with the report it shall have the right to settle the
matter in accordance with provisions of this Convention or
bring the issue to the Executive Council with a view to
settling the matter expeditiously.
13. Pursuant to Article I, paragraph 3, the Territorial
State Party shall have the right to request the State Party
which has been established as the Abandoning State Party
pursuant to paragraphs 8 to 12 to enter into consultations for
the purpose of destroying the abandoned chemical weapons in
cooperation with the Territorial State Party. It shall
immediately inform the Technical Secretariat of this request.
14. Consultations between the Territorial State Party and
the Abandoning State Party with a view to establishing a
mutually agreed plan for destruction shall begin not later than
30 days after the Technical Secretariat has been informed of
the request referred to in paragraph 13. The mutually agreed
plan for destruction shall be transmitted to the Technical
Secretariat not later than 180 days after the Technical
Secretariat has been informed of the request referred to in
paragraph 13. Upon the request of the Abandoning State Party
and the Territorial State Party, the Executive Council may
extend the time-limit for transmission of the mutually agreed
plan for destruction.
15. For the purpose of destroying abandoned chemical
weapons, the Abandoning State Party shall provide all necessary
financial, technical, expert, facility as well as other
resources. The Territorial State Party shall provide
appropriate cooperation.
16. If the Abandoning State cannot be identified or is not
a State Party, the Territorial State Party, in order to ensure
the destruction of these abandoned chemical weapons, may
request the Organization and other States Parties to provide
assistance in the destruction of these abandoned chemical
weapons.
17. Subject to paragraphs 8 to 16, Article IV and Part IV
(A) of this Annex shall also apply to the destruction of
abandoned chemical weapons. In the case of abandoned chemical
weapons which also meet the definition of old chemical weapons
in Article II, paragraph 5 (b), the Executive Council, upon the
request of the Territorial State Party, individually or
together with the Abandoning State Party, may modify or in
exceptional cases suspend the application of provisions on
destruction, if it determines that doing so would not pose a
risk to the object and purpose of this Convention. In the case
of abandoned chemical weapons which do not meet the definition
of old chemical weapons in Article II, paragraph 5 (b), the
Executive Council, upon the request of the Territorial State
Party, individually or together with the Abandoning State
Party, may in exceptional circumstances modify the provisions
on the time-limit and the order of destruction, if it
determines that doing so would not pose a risk to the object
and purpose of this Convention. Any request as referred to in
this paragraph shall contain specific proposals for
modification of the provisions and a detailed explanation of
the reasons for the proposed modification.
18. States Parties may conclude between themselves
agreements or arrangements concerning the destruction of
abandoned chemical weapons. The Executive Council may, upon
request of the Territorial State Party, individually or
together with the Abandoning State Party, decide that selected
provisions of such agreements or arrangements take precedence
over provisions of this Section, if it determines that the
agreement or arrangement ensures the destruction of the
abandoned chemical weapons in accordance with paragraph 17.
Part V
DESTRUCTION OF CHEMICAL WEAPONS PRODUCTION FACILITIES AND ITS
VERIFICATION PURSUANT TO ARTICLE V
A. Declarations
Declarations of chemical weapons production facilities
1. The declaration of chemical weapons production
facilities by a State Party pursuant to Article III, paragraph
1 (c) (ii), shall contain for each facility:
(a) The name of the facility, the names of the
owners, and the names of the companies or enterprises
operating the facility since 1 January 1946;
(b) The precise location of the facility, including
the address, location of the complex, location of the
facility within the complex including the specific
building and structure number, if any;
(c) A statement whether it is a facility for the
manufacture of chemicals that are defined as chemical
weapons or whether it is a facility for the filling of
chemical weapons, or both;
(d) The date when the construction of the facility
was completed and the periods during which any
modifications to the facility were made, including the
installation of new or modified equipment, that
significantly changed the production process
characteristics of the facility;
(e) Information on the chemicals defined as chemical
weapons that were manufactured at the facility; the
munitions, devices, and containers that were filled at
the facility; and the dates of the beginning and
cessation of such manufacture or filling:
(i) For chemicals defined as chemical weapons
that were manufactured at the facility, such
information shall be expressed in terms of the
specific types of chemicals manufactured,
indicating the chemical name in accordance with
the current International Union of Pure and
Applied Chemistry (IUPAC) nomenclature,
structural formula, and the Chemical Abstracts
Service registry number, if assigned, and in
terms of the amount of each chemical expressed
by weight of chemical in tonnes;
(ii) For munitions, devices and containers
that were filled at the facility, such
information shall be expressed in terms of the
specific type of chemical weapons filled and
the weight of the chemical fill per unit;
(f) The production capacity of the chemical weapons
production facility:
(i) For a facility where chemical weapons
were manufactured, production capacity shall be
expressed in terms of the annual quantitative
potential for manufacturing a specific
substance on the basis of the technological
process actually used or, in the case of
processes not actually used, planned to be used
at the facility;
(ii) For a facility where chemical weapons
were filled, production capacity shall be
expressed in terms of the quantity of chemical
that the facility can fill into each specific
type of chemical weapon a year;
(g) For each chemical weapons production facility
that has not been destroyed, a description of the
facility, including:
(i) A site diagram;
(ii) A process flow diagram of the facility;
and
(iii) An inventory of buildings at the
facility, and specialized equipment at the
facility and of any spare parts for such
equipment;
(h) The present status of the facility, stating:
(i) The date when chemical weapons were last
produced at the facility;
(ii) Whether the facility has been destroyed,
including the date and manner of its
destruction; and
(iii) Whether the facility has been used or
modified before entry into force of this
Convention for an activity not related to the
production of chemical weapons, and if so,
information on what modifications have been
made, the date such non-chemical weapons
related activity began and the nature of such
activity, indicating, if applicable, the kind
of product;
(i) A specification of the measures that have been
taken by the State Party for closure of, and a
description of the measures that have been or will be
taken by the State Party to inactivate the facility;
(j) A description of the normal pattern of activity
for safety and security at the inactivated facility;
and
(k) A statement as to whether the facility will be
converted for the destruction of chemical weapons and,
if so, the dates for such conversions.
Declarations of chemical weapons production facilities
pursuant to Article III, paragraph 1 (c) (iii)
2. The declaration of chemical weapons production
facilities pursuant to Article III, paragraph 1 (c) (iii),
shall contain all information specified in paragraph 1 above.
It is the responsibility of the State Party on whose territory
the facility is or has been located to make appropriate
arrangements with the other State to ensure that the
declarations are made. If the State Party on whose territory
the facility is or has been located is not able to fulfil this
obligation, it shall state the reasons therefor.
Declarations of past transfers and receipts
3. A State Party that has transferred or received chemical
weapons production equipment since 1 January 1946 shall declare
these transfers and receipts pursuant to Article III, paragraph
1 (c) (iv), and in accordance with paragraph 5 below. When not
all the specified information is available for transfer and
receipt of such equipment for the period between 1 January 1946
and 1 January 1970, the State Party shall declare whatever
information is still available to it and provide an explanation
as to why it cannot submit a full declaration.
4. Chemical weapons production equipment referred to in
paragraph 3 means:
(a) Specialized equipment;
(b) Equipment for the production of equipment
specifically designed for use directly in connection
with chemical weapons employment; and
(c) Equipment designed or used exclusively for
producing non-chemical parts for chemical munitions.
5. The declaration concerning transfer and receipt of
chemical weapons production equipment shall specify:
(a) Who received/transferred the chemical weapons
production equipment;
(b) The identity of such equipment;
(c) The date of transfer or receipt;
(d) Whether the equipment was destroyed, if known;
and
(e) Current disposition, if known.
Submission of general plans for destruction
6. For each chemical weapons production facility, a State
Party shall supply the following information:
(a) Envisaged time-frame for measures to be taken;
and
(b) Methods of destruction.
7. For each chemical weapons production facility that a
State Party intends to convert temporarily into a chemical
weapons destruction facility, the State Party shall supply the
following information:
(a) Envisaged time-frame for conversion into a
destruction facility;
(b) Envisaged time-frame for utilizing the facility
as a chemical weapons destruction facility;
(c) Description of the new facility;
(d) Method of destruction of special equipment;
(e) Time-frame for destruction of the converted
facility after it has been utilized to destroy chemical
weapons; and
(f) Method of destruction of the converted facility.
Submission of annual plans for destruction and annual
reports on destruction
8. The State Party shall submit an annual plan for
destruction not less than 90 days before the beginning of the
coming destruction year. The annual plan shall specify:
(a) Capacity to be destroyed;
(b) Name and location of the facilities where
destruction will take place;
(c) List of buildings and equipment that will be
destroyed at each facility; and
(d) Planned method(s) of destruction.
9. A State Party shall submit an annual report on
destruction not later than 90 days after the end of the
previous destruction year. The annual report shall specify:
(a) Capacity destroyed;
(b) Name and location of each facility where
destruction took place;
(c) List of buildings and equipment that were
destroyed at each facility;
(d) Methods of destruction.
10. For a chemical weapons production facility declared
pursuant to Article III, paragraph 1 (c) (iii), it is the
responsibility of the State Party on whose territory the
facility is or has been located to make appropriate
arrangements to ensure that the declarations specified in
paragraphs 6 to 9 above are made. If the State Party on whose
territory the facility is or has been located is not able to
fulfil this obligation, it shall state the reasons therefor.
B. Destruction
General principles for destruction of chemical weapons
production facilities
11. Each State Party shall decide on methods to be applied
for the destruction of chemical weapons production facilities,
according to the principles laid down in Article V and in this
Part.
Principles and methods for closure of a chemical weapons
production facility
12. The purpose of the closure of a chemical weapons
production facility is to render it inactive.
13. Agreed measures for closure shall be taken by a State
Party with due regard to the specific characteristics of each
facility. Such measures shall include, inter alia:
(a) Prohibition of occupation of the specialized
buildings and standard buildings of the facility except
for agreed activities;
(b) Disconnection of equipment directly related to
the production of chemical weapons, including, inter
alia, process control equipment and utilities;
(c) Decommissioning of protective installations and
equipment used exclusively for the safety of operations
of the chemical weapons production facility;
(d) Installation of blind flanges and other devices
to prevent the addition of chemicals to, or the removal
of chemicals from, any specialized process equipment
for synthesis, separation or purification of chemicals
defined as a chemical weapon, any storage tank, or any
machine for filling chemical weapons, the heating,
cooling, or supply of electrical or other forms of
power to such equipment, storage tanks, or machines;
and
(e) Interruption of rail, road and other access
routes for heavy transport to the chemical weapons
production facility except those required for agreed
activities.
14. While the chemical weapons production facility remains
closed, a State Party may continue safety and physical security
activities at the facility.
Technical maintenance of chemical weapons production
facilities prior to their destruction
15. A State Party may carry out standard maintenance
activities at chemical weapons production facilities only for
safety reasons, including visual inspection, preventive
maintenance, and routine repairs.
16. All planned maintenance activities shall be specified
in the general and detailed plans for destruction. Maintenance
activities shall not include:
(a) Replacement of any process equipment;
(b) Modification of the characteristics of the
chemical process equipment;
(c) Production of chemicals of any type.
17. All maintenance activities shall be subject to
monitoring by the Technical Secretariat.
Principles and methods for temporary conversion of chemical
weapons production facilities into chemical weapons
destruction facilities
18. Measures pertaining to the temporary conversion of
chemical weapons production facilities into chemical weapons
destruction facilities shall ensure that the regime for the
temporarily converted facilities is at least as stringent as
the regime for chemical weapons production facilities that have
not been converted.
19. Chemical weapons production facilities converted into
chemical weapons destruction facilities before entry into force
of this Convention shall be declared under the category of
chemical weapons production facilities.
They shall be subject to an initial visit by inspectors,
who shall confirm the correctness of the information about
these facilities. Verification that the conversion of these
facilities was performed in such a manner as to render them
inoperable as chemical weapons production facilities shall also
be required, and shall fall within the framework of measures
provided for the facilities that are to be rendered inoperable
not later than 90 days after entry into force of this
Convention.
20. A State Party that intends to carry out a conversion of
chemical weapons production facilities shall submit to the
Technical Secretariat, not later than 30 days after this
Convention enters into force for it, or not later than 30 days
after a decision has been taken for temporary conversion, a
general facility conversion plan, and subsequently shall submit
annual plans.
21. Should a State Party have the need to convert to a
chemical weapons destruction facility an additional chemical
weapons production facility that had been closed after this
Convention entered into force for it, it shall inform the
Technical Secretariat thereof not less than 150 days before
conversion. The Technical Secretariat, in conjunction with the
State Party, shall make sure that the necessary measures are
taken to render that facility, after its conversion, inoperable
as a chemical weapons production facility.
22. A facility converted for the destruction of chemical
weapons shall not be more fit for resuming chemical weapons
production than a chemical weapons production facility which
has been closed and is under maintenance. Its reactivation
shall require no less time than that required for a chemical
weapons production facility that has been closed and is under
maintenance.
23. Converted chemical weapons production facilities shall
be destroyed not later than 10 years after entry into force of
this Convention.
24. Any measures for the conversion of any given chemical
weapons production facility shall be facility-specific and
shall depend upon its individual characteristics.
25. The set of measures carried out for the purpose of
converting a chemical weapons production facility into a
chemical weapons destruction facility shall not be less than
that which is provided for the disabling of other chemical
weapons production facilities to be carried out not later than
90 days after this Convention enters into force for the State
Party.
Principles and methods related to destruction of a chemical
weapons production facility
26. A State Party shall destroy equipment and buildings
covered by the definition of a chemical weapons production
facility as follows:
(a) All specialized equipment and standard equipment
shall be physically destroyed;
(b) All specialized buildings and standard buildings
shall be physically destroyed.
27. A State Party shall destroy facilities for producing
unfilled chemical munitions and equipment for chemical weapons
employment as follows:
(a) Facilities used exclusively for production of
non-chemical parts for chemical munitions or equipment
specifically designed for use directly in connection
with chemical weapons employment, shall be declared and
destroyed. The destruction process and its verification
shall be conducted according to the provisions of
Article V and this Part of this Annex that govern
destruction of chemical weapons production facilities;
(b) All equipment designed or used exclusively for
producing non-chemical parts for chemical munitions
shall be physically destroyed. Such equipment, which
includes specially designed molds and metal-forming
dies, may be brought to a special location for
destruction;
(c) All buildings and standard equipment used for
such production activities shall be destroyed or
converted for purposes not prohibited under this
Convention, with confirmation, as necessary, through
consultations and inspections as provided for under
Article IX;
(d) Activities for purposes not prohibited under this
Convention may continue while destruction or conversion
proceeds.
Order of destruction
28. The order of destruction of chemical weapons production
facilities is based on the obligations specified in Article I
and the other Articles of this Convention, including
obligations regarding systematic on-site verification. It takes
into account interests of States Parties for undiminished
security during the destruction period; confidence-building in
the early part of the destruction stage; gradual acquisition of
experience in the course of destroying chemical weapons
production facilities; and applicability irrespective of the
actual characteristics of the facilities and the methods chosen
for their destruction. The order of destruction is based on the
principle of levelling out.
29. A State Party shall, for each destruction period,
determine which chemical weapons production facilities are to
be destroyed and carry out the destruction in such a way that
not more than what is specified in paragraphs 30 and 31 remains
at the end of each destruction period. A State Party is not
precluded from destroying its facilities at a faster pace.
30. The following provisions shall apply to chemical
weapons production facilities that produce Schedule 1
chemicals:
(a) A State Party shall start the destruction of such
facilities not later than one year after this
Convention enters into force for it, and shall complete
it not later than 10 years after entry into force of
this Convention. For a State which is a Party at the
entry into force of this Convention, this overall
period shall be divided into three separate destruction
periods, namely, years 2-5, years 6-8, and years 9-10.
For States which become a Party after entry into force
of this Convention, the destruction periods shall be
adapted, taking into account paragraphs 28 and 29;
(b) Production capacity shall be used as the
comparison factor for such facilities. It shall be
expressed in agent tonnes, taking into account the
rules specified for binary chemical weapons;
(c) Appropriate agreed levels of production capacity
shall be established for the end of the eighth year
after entry into force of this Convention. Production
capacity that exceeds the relevant level shall be
destroyed in equal increments during the first two
destruction periods;
(d) A requirement to destroy a given amount of
capacity shall entail a requirement to destroy any
other chemical weapons production facility that
supplied the Schedule 1 facility or filled the Schedule
1 chemical produced there into munitions or devices;
and
(e) Chemical weapons production facilities that have
been converted temporarily for destruction of chemical
weapons shall continue to be subject to the obligation
to destroy capacity according to the provisions of this
paragraph.
31. A State Party shall start the destruction of chemical
weapons production facilities not covered in paragraph 30 not
later than one year after this Convention enters into force for
it, and complete it not later than five years after entry into
force of this Convention.
Detailed plans for destruction
32. Not less than 180 days before the destruction of a
chemical weapons production facility starts, a State Party
shall provide to the Technical Secretariat the detailed plans
for destruction of the facility, including proposed measures
for verification of destruction referred to in paragraph 33
(f), with respect to, inter alia:
(a) Timing of the presence of the inspectors at the
facility to be destroyed; and
(b) Procedures for verification of measures to be
applied to each item on the declared inventory.
33. The detailed plans for destruction of each chemical
weapons production facility shall contain:
(a) Detailed time schedule of the destruction
process;
(b) Layout of the facility;
(c) Process flow diagram;
(d) Detailed inventory of equipment, buildings and
other items to be destroyed;
(e) Measures to be applied to each item on the
inventory;
(f) Proposed measures for verification;
(g) Security/safety measures to be observed during
the destruction of the facility; and
(h) Working and living conditions to be provided for
inspectors.
34. If a State Party intends to convert temporarily a
chemical weapons production facility into a chemical weapons
destruction facility, it shall notify the Technical Secretariat
not less than 150 days before undertaking any conversion
activities. The notification shall:
(a) Specify the name, address, and location of the
facility;
(b) Provide a site diagram indicating all structures
and areas that will be involved in the destruction of
chemical weapons and also identify all structures of
the chemical weapons production facility that are to be
temporarily converted;
(c) Specify the types of chemical weapons, and the
type and quantity of chemical fill to be destroyed;
(d) Specify the destruction method;
(e) Provide a process flow diagram, indicating which
portions of the production process and specialized
equipment will be converted for the destruction of
chemical weapons;
(f) Specify the seals and inspection equipment
potentially affected by the conversion, if applicable;
and
(g) Provide a schedule identifying: The time
allocated to design, temporary conversion of the
facility, installation of equipment, equipment check-
out, destruction operations, and closure.
35. In relation to the destruction of a facility that was
temporarily converted for destruction of chemical weapons,
information shall be provided in accordance with paragraphs 32
and 33.
Review of detailed plans
36. On the basis of the detailed plan for destruction and
proposed measures for verification submitted by the State
Party, and on experience from previous inspections, the
Technical Secretariat shall prepare a plan for verifying the
destruction of the facility, consulting closely with the State
Party. Any differences between the Technical Secretariat and
the State Party concerning appropriate measures should be
resolved through consultations. Any unresolved matters shall be
forwarded to the Executive Council for appropriate action with
a view to facilitating the full implementation of this
Convention.
37. To ensure that the provisions of Article V and this
Part are fulfilled, the combined plans for destruction and
verification shall be agreed upon between the Executive Council
and the State Party. This agreement should be completed, not
less than 60 days before the planned initiation of destruction.
38. Each member of the Executive Council may consult with
the Technical Secretariat on any issues regarding the adequacy
of the combined plan for destruction and verification. If there
are no objections by any member of the Executive Council, the
plan shall be put into action.
39. If there are any difficulties, the Executive Council
shall enter into consultations with the State Party to
reconcile them. If any difficulties remain unresolved they
shall be referred to the Conference. The resolution of any
differences over methods of destruction shall not delay the
execution of other parts of the destruction plan that are
acceptable.
40. If agreement is not reached with the Executive Council
on aspects of verification, or if the approved verification
plan cannot be put into action, verification of destruction
shall proceed through continuous monitoring with on-site
instruments and physical presence of inspectors.
41. Destruction and verification shall proceed according to
the agreed plan. The verification shall not unduly interfere
with the destruction process and shall be conducted through the
presence of inspectors on-site to witness the destruction.
42. If required verification or destruction actions are not
taken as planned, all States Parties shall be so informed.
C. Verification
Verification of declarations of chemical weapons production
facilities through on-site inspection
43. The Technical Secretariat shall conduct an initial
inspection of each chemical weapons production facility in the
period between 90 and 120 days after this Convention enters
into force for the State Party.
44. The purposes of the initial inspection shall be:
(a) To confirm that the production of chemical
weapons has ceased and that the facility has been
inactivated in accordance with this Convention;
(b) To permit the Technical Secretariat to
familiarize itself with the measures that have been
taken to cease production of chemical weapons at the
facility;
(c) To permit the inspectors to install temporary
seals;
(d) To permit the inspectors to confirm the inventory
of buildings and specialized equipment;
(e) To obtain information necessary for planning
inspection activities at the facility, including use of
tamper-indicating seals and other agreed equipment,
which shall be installed pursuant to the detailed
facility agreement for the facility; and
(f) To conduct preliminary discussions regarding a
detailed agreement on inspection procedures at the
facility.
45. Inspectors shall employ, as appropriate, agreed seals,
markers or other inventory control procedures to facilitate an
accurate inventory of the declared items at each chemical
weapons production facility.
46. Inspectors shall install such agreed devices as may be
necessary to indicate if any resumption of production of
chemical weapons occurs or if any declared item is removed.
They shall take the necessary precaution not to hinder closure
activities by the inspected State Party. Inspectors may return
to maintain and verify the integrity of the devices.
47. If, on the basis of the initial inspection, the
Director-General believes that additional measures are
necessary to inactivate the facility in accordance with this
Convention, the Director-General may request, not later than
135 days after this Convention enters into force; for a State
Party, that such measures be implemented by the inspected State
Party not later than 180 days after this Convention enters into
force for it. At its discretion, the inspected State Party may
satisfy the request. If it does not satisfy the request, the
inspected State Party and the Director-General shall consult to
resolve the matter.
Systematic verification of chemical weapons production
facilities and cessation of their activities
48. The purpose of the systematic verification of a
chemical weapons production facility shall be to ensure that
any resumption of production of chemical weapons or removal of
declared items will be detected at this facility.
49. The detailed facility agreement for each chemical
weapons production facility shall specify:
(a) Detailed on-site inspection procedures, which may
include:
(i) Visual examinations;
(ii) Checking and servicing of seals and
other agreed devices; and
(iii) Obtaining and analyzing samples;
(b) Procedures for using tamper-indicating seals and
other agreed equipment to prevent the undetected
reactivation of the facility, which shall specify:
(i) The type, placement, and arrangements for
installation; and
(ii) The maintenance of such seals and
equipment; and
(c) Other agreed measures.
50. The seals or other approved equipment provided for in a
detailed agreement on inspection measures for that facility
shall be placed not later than 240 days after this Convention
enters into force for a State Party. Inspectors shall be
permitted to visit each chemical weapons production facility
for the installation of such seals or equipment.
51. During each calendar year, the Technical Secretariat
shall be permitted to conduct up to four inspections of each
chemical weapons production facility.
52. The Director-General shall notify the inspected State
Party of his decision to inspect or visit a chemical weapons
production facility 48 hours before the planned arrival of the
inspection team at the facility for systematic inspections or
visits. In the case of inspections or visits to resolve urgent
problems, this period may be shortened. The Director-General
shall specify the purpose of the inspection or visit.
53. Inspectors shall, in accordance with the facility
agreements, have unimpeded access to all parts of the chemical
weapons production facilities. The items on the declared
inventory to be inspected shall be chosen by the inspectors.
54. The guidelines for determining the frequency of
systematic on-site inspections shall be considered and approved
by the Conference pursuant to Article VIII, paragraph 21 (i).
The particular production facility to be inspected shall be
chosen by the Technical Secretariat in such a way as to
preclude the prediction of precisely when the facility is to be
inspected.
Verification of destruction of chemical weapons production
facilities
55. The purpose of systematic verification of the
destruction of chemical weapons production facilities shall be
to confirm that the facility is destroyed in accordance with
the obligations under this Convention and that each item on the
declared inventory is destroyed in accordance with the agreed
detailed plan for destruction.
56. When all items on the declared inventory have been
destroyed, the Technical Secretariat shall confirm the
declaration of the State Party to that effect. After this
confirmation, the Technical Secretariat shall terminate the
systematic verification of the chemical weapons production
facility and shall promptly remove all devices and monitoring
instruments installed by the inspectors.
57. After this confirmation, the State Party shall make the
declaration that the facility has been destroyed.
Verification of temporary conversion of a chemical weapons
production facility into a chemical weapons
destruction facility
58. Not later than 90 days after receiving the initial
notification of the intent to convert temporarily a production
facility, the inspectors shall have the right to visit the
facility to familiarize themselves with the proposed temporary
conversion and to study possible inspection measures that will
be required during the conversion.
59. Not later than 60 days after such a visit, the
Technical Secretariat and the inspected State Party shall
conclude a transition agreement containing additional
inspection measures for the temporary conversion period. The
transition agreement shall specify inspection procedures,
including the use of seals, monitoring equipment, and
inspections, that will provide confidence that no chemical
weapons production takes place during the conversion process.
This agreement shall remain in force from the beginning of the
temporary conversion activity until the facility begins
operation as a chemical weapons destruction facility.
60. The inspected State Party shall not remove or convert
any portion of the facility, or remove or modify any seal or
other agreed inspection equipment that may have been installed
pursuant to this Convention until the transition agreement has
been concluded.
61. Once the facility begins operation as a chemical
weapons destruction facility, it shall be subject to the
provisions of Part IV (A) of this Annex applicable to chemical
weapons destruction facilities. Arrangements for the pre-
operation period shall be governed by the transition agreement.
62. During destruction operations the inspectors shall have
access to all portions of the temporarily converted chemical
weapons production facilities, including those that are not
directly involved with the destruction of chemical weapons.
63. Before the commencement of work at the facility to
convert it temporarily for chemical weapons destruction
purposes and after the facility has ceased to function as a
facility for chemical weapons destruction, the facility shall
be subject to the provisions of this Part applicable to
chemical weapons production facilities.
D. Conversion of chemical weapons production facilities to purposes not
prohibited under this convention
Procedures for requesting conversion
64. A request to use a chemical weapons production facility
for purposes not prohibited under this Convention may be made
for any facility that a State Party is already using for such
purposes before this Convention enters into force for it, or
that it plans to use for such purposes.
65. For a chemical weapons production facility that is
being used for purposes not prohibited under this Convention
when this Convention enters into force for the State Party, the
request shall be submitted to the Director-General not later
than 30 days after this Convention enters into force for the
State Party. The request shall contain, in addition to data
submitted in accordance with paragraph 1 (h) (iii), the
following information:
(a) A detailed justification for the request;
(b) A general facility conversion plan that
specifies:
(i) The nature of the activity to be
conducted at the facility;
(ii) If the planned activity involves
production, processing, or consumption of
chemicals: the name of each of the chemicals,
the flow diagram of the facility, and the
quantities planned to be produced, processed,
or consumed annually;
(iii) Which buildings or structures are
proposed to be used and what modifications are
proposed, if any;
(iv) Which buildings or structures have been
destroyed or are proposed to be destroyed and
the plans for destruction;
(v) What equipment is to be used in the
facility;
(vi) What equipment has been removed and
destroyed and what equipment is proposed to be
removed and destroyed and the plans for its
destruction;
(vii) The proposed schedule for conversion,
if applicable; and
(viii) The nature of the activity of each
other facility operating at the site; and
(c) A detailed explanation of how measures set forth
in subparagraph (b), as well as any other measures
proposed by the State Party, will ensure the prevention
of standby chemical weapons production capability at
the facility.
66. For a chemical weapons production facility that is not
being used for purposes not prohibited under this Convention
when this Convention enters into force for the State Party, the
request shall be submitted to the Director-General not later
than 30 days after the decision to convert, but in no case
later than four years after this Convention enters into force
for the State Party. The request shall contain the following
information:
(a) A detailed justification for the request,
including its economic needs;
(b) A general facility conversion plan that specifies:
(i) The nature of the activity planned to be
conducted at the facility;
(ii) If the planned activity involves
production, processing, or consumption of
chemicals: the name of each of the chemicals,
the flow diagram of the facility, and the
quantities planned to be produced, processed,
or consumed annually;
(iii) Which buildings or structures are
proposed to be retained and what modifications
are proposed, if any;
(iv) Which buildings or structures have been
destroyed or are proposed to be destroyed and
the plans for destruction;
(v) What equipment is proposed for use in the
facility;
(vi) What equipment is proposed to be removed
and destroyed and the plans for its
destruction;
(vii) The proposed schedule for conversion;
and
(viii) The nature of the activity of each
other facility operating at the site; and
(c) A detailed explanation of how the measures set
forth in subparagraph (b), as well as any other
measures proposed by the State Party, will ensure the
prevention of standby chemical weapons production
capability at the facility.
67. The State Party may propose in its request any other
measures it deems appropriate to build confidence.
Actions pending a decision
68. Pending a decision of the Conference, a State Party may
continue to use for purposes not prohibited under this
Convention a facility that was being used for such purposes
before this Convention enters into force for it, but only if
the State Party certifies in its request that no specialized
equipment and no specialized buildings are being used and that
the specialized equipment and specialized buildings have been
rendered inactive using the methods specified in paragraph 13.
69. If the facility, for which the request was made, was
not being used for purposes not prohibited under this
Convention before this Convention enters into force for the
State Party, or if the certification required in paragraph 68
is not made, the State Party shall cease immediately all
activity pursuant to Article V, paragraph 4. The State Party
shall close the facility in accordance with paragraph 13 not
later than 90 days after this Convention enters into force for
it.
Conditions for conversion
70. As a condition for conversion of a chemical weapons
production facility for purposes not prohibited under this
Convention, all specialized equipment at the facility must be
destroyed and all special features of buildings and structures
that distinguish them from buildings and structures normally
used for purposes not prohibited under this Convention and not
involving Schedule 1 chemicals must be eliminated.
71. A converted facility shall not be used:
(a) For any activity involving production,
processing, or consumption of a Schedule 1 chemical or
a Schedule 2 chemical; or
(b) For the production of any highly toxic chemical,
including any highly toxic organophosphorus chemical,
or for any other activity that would require special
equipment for handling highly toxic or highly corrosive
chemicals, unless the Executive Council decides that
such production or activity would pose no risk to the
object and purpose of this Convention, taking into
account criteria for toxicity, corrosiveness and, if
applicable, other technical factors, to be considered
and approved by the Conference pursuant to Article
VIII, paragraph 21 (i).
72. Conversion of a chemical weapons production facility
shall be completed not later than six years after entry into
force of this Convention.
Decisions by the Executive Council and the Conference
73. Not later than 90 days after receipt of the request by
the Director-General, an initial inspection of the facility
shall be conducted by the Technical Secretariat. The purpose of
this inspection shall be to determine the accuracy of the
information provided in the request, to obtain information on
the technical characteristics of the proposed converted
facility, and to assess the conditions under which use for
purposes not prohibited under this Convention may be permitted.
The Director-General shall promptly submit a report to the
Executive Council, the Conference, and all States Parties
containing his recommendations on the measures necessary to
convert the facility to purposes not prohibited under this
Convention and to provide assurance that the converted facility
will be used only for purposes not prohibited under this
Convention.
74. If the facility has been used for purposes not
prohibited under this Convention before this Convention enters
into force for the State Party, and is continuing to be in
operation, but the measures required to be certified under
paragraph 68 have not been taken, the Director-General shall
immediately inform the Executive Council, which may require
implementation of measures it deems appropriate, inter alia,
shut-down of the facility and removal of specialized equipment
and modification of buildings or structures. The Executive
Council shall stipulate the deadline for implementation of
these measures and shall suspend consideration of the request
pending their satisfactory completion. The facility shall be
inspected promptly after the expiration of the deadline to
determine whether the measures have been implemented. If not,
the State Party shall be required to shut down completely all
facility operations.
75. As soon as possible after receiving the report of the
Director-General, the Conference, upon recommendation of the
Executive Council, shall decide, taking into account the report
and any views expressed by States Parties, whether to approve
the request, and shall establish the conditions upon which
approval is contingent. If any State Party objects to approval
of the request and the associated conditions, consultations
shall be undertaken among interested States Parties for up to
90 days to seek a mutually acceptable solution. A decision on
the request and associated conditions, along with any proposed
modifications thereto, shall be taken, as a matter of
substance, as soon as possible after the end of the
consultation period.
76. If the request is approved, a facility agreement shall
be completed not later than 90 days after such a decision is
taken. The facility agreement shall contain the conditions
under which the conversion and use of the facility is
permitted, including measures for verification. Conversion
shall not begin before the facility agreement is concluded.
Detailed plans for conversion
77. Not less than 180 days before conversion of a chemical
weapons production facility is planned to begin, the State
Party shall provide the Technical Secretariat with the detailed
plans for conversion of the facility, including proposed
measures for verification of conversion, with respect to, inter
alia:
(a) Timing of the presence of the inspectors at the
facility to be converted; and
(b) Procedures for verification of measures to be
applied to each item on the declared inventory.
78. The detailed plan for conversion of each chemical
weapons production facility shall contain:
(a) Detailed time schedule of the conversion process;
(b) Layout of the facility before and after
conversion;
(c) Process flow diagram of the facility before, and
as appropriate, after the conversion;
(d) Detailed inventory of equipment, buildings and
structures and other items to be destroyed and of the
buildings and structures to be modified;
(e) Measures to be applied to each item on the
inventory, if any;
(f) Proposed measures for verification;
(g) Security/safety measures to be observed during
the conversion of the facility; and
(h) Working and living conditions to be provided for
inspectors.
Review of detailed plans
79. On the basis of the detailed plan for conversion and
proposed measures for verification submitted by the State
Party, and on experience from previous inspections, the
Technical Secretariat shall prepare a plan for verifying the
conversion of the facility, consulting closely with the State
Party. Any differences between the Technical Secretariat and
the State Party concerning appropriate measures shall be
resolved through consultations. Any unresolved matters shall be
forwarded to the Executive Council for appropriate action with
a view to facilitate the full implementation of this
Convention.
80. To ensure that the provisions of Article V and this
Part are fulfilled, the combined plans for conversion and
verification shall be agreed upon between the Executive Council
and the State Party. This agreement shall be completed not less
than 60 days before conversion is planned to begin.
81. Each member of the Executive Council may consult with
the Technical Secretariat on any issue regarding the adequacy
of the combined plan for conversion and verification. If there
are no objections by any member of the Executive Council, the
plan shall be put into action.
82. If there are any difficulties, the Executive Council
should enter into consultations with the State Party to
reconcile them. If any difficulties remain unresolved, they
should be referred to the Conference. The resolution of any
differences over methods of conversion should not delay the
execution of other parts of the conversion plan that are
acceptable.
83. If agreement is not reached with the Executive Council
on aspects of verification, or if the approved verification
plan cannot be put into action, verification of conversion
shall proceed through continuous monitoring with on-site
instruments and physical presence of inspectors.
84. Conversion and verification shall proceed according to
the agreed plan. The verification shall not unduly interfere
with the conversion process and shall be conducted through the
presence of inspectors to confirm the conversion.
85. For the 10 years after the Director-General certifies
that conversion is complete, the State Party shall provide to
inspectors unimpeded access to the facility at any time. The
inspectors shall have the right to observe all areas, all
activities, and all items of equipment at the facility. The
inspectors shall have the right to verify that the activities
at the facility are consistent with any conditions established
under this Section, by the Executive Council and the
Conference. The inspectors shall also have the right, in
accordance with provisions of Part II, Section E, of this Annex
to receive samples from any area of the facility and to analyze
them to verify the absence of Schedule 1 chemicals, their
stable by-products and decomposition products and of Schedule 2
chemicals and to verify that the activities at the facility are
consistent with any other conditions on chemical activities
established under this Section, by the Executive Council and
the Conference. The inspectors shall also have the right to
managed access, in accordance with Part X, Section C, of this
Annex, to the plant site at which the facility is located.
During the 10-year period, the State Party shall report
annually on the activities at the converted facility. Upon
completion of the 10-year period, the Executive Council, taking
into account recommendations of the Technical Secretariat,
shall decide on the nature of continued verification measures.
86. Costs of verification of the converted facility shall
be allocated in accordance with Article V, paragraph 19.
PART VI
ACTIVITIES NOT PROHIBITED UNDER THIS CONVENTION IN ACCORDANCE WITH
ARTICLE VI
REGIME FOR SCHEDULE 1 CHEMICALS AND FACILITIES RELATED TO SUCH
CHEMICALS
A. General Provisions
1. A State Party shall not produce, acquire, retain or use
Schedule 1 chemicals outside the territories of States Parties
and shall not transfer such chemicals outside its territory
except to another State Party.
2. A State Party shall not produce, acquire, retain,
transfer or use Schedule 1 chemicals unless:
(a) The chemicals are applied to research, medical,
pharmaceutical or protective purposes; and
(b) The types and quantities of chemicals are
strictly limited to those which can be justified for
such purposes; and
(c) The aggregate amount of such chemicals at any
given time for such purposes is equal to or less than 1
tonne; and
(d) The aggregate amount for such purposes acquired
by a State Party in any year through production,
withdrawal from chemical weapons stocks and transfer is
equal to or less than 1 tonne.
B. Transfers
3. A State Party may transfer Schedule 1 chemicals outside
its territory only to another State Party and only for
research, medical, pharmaceutical or protective purposes in
accordance with paragraph 2.
4. Chemicals transferred shall not be retransferred to a
third State.
5. Not less than 30 days before any transfer to another
State Party both States Parties shall notify the Technical
Secretariat of the transfer.
6. Each State Party shall make a detailed annual
declaration regarding transfers during the previous year. The
declaration shall be submitted not later than 90 days after the
end of that year and shall for each Schedule 1 chemical that
has been transferred include the following information:
(a) The chemical name, structural formula and
Chemical Abstracts Service registry number, if
assigned;
(b) The quantity acquired from other States or
transferred to other States Parties. For each transfer
the quantity, recipient and purpose shall be included.
C. Production
General principles for production
7. Each State Party, during production under paragraphs 8
to 12, shall assign the highest priority to ensuring the safety
of people and to protecting the environment. Each State Party
shall conduct such production in accordance with its national
standards for safety and emissions.
Single small-scale facility
8. Each State Party that produces Schedule 1 chemicals for
research, medical, pharmaceutical or protective purposes shall
carry out the production at a single small-scale facility
approved by the State Party, except as set forth in paragraphs
10, 11 and 12.
9. The production at a single small-scale facility shall be
carried out in reaction vessels in production lines not
configurated for continuous operation. The volume of such a
reaction vessel shall not exceed 100 liters, and the total
volume of all reaction vessels with a volume exceeding 5 liters
shall not be more than 500 liters.
Other facilities
10. Production of Schedule 1 chemicals in aggregate
quantities not exceeding 10 kg per year may be carried out for
protective purposes at one facility outside a single small-
scale facility. This facility shall be approved by the State
Party.
11. Production of Schedule 1 chemicals in quantities of
more than 100 g per year may be carried out for research,
medical or pharmaceutical purposes outside a single small-scale
facility in aggregate quantities not exceeding 10 kg per year
per facility. These facilities shall be approved by the State
Party.
12. Synthesis of Schedule 1 chemicals for research, medical
or pharmaceutical purposes, but not for protective purposes,
may be carried out at laboratories in aggregate quantities less
than 100 g per year per facility. These facilities shall not be
subject to any obligation relating to declaration and
verification as specified in Sections D and E.
D. Declarations
Single small-scale facility
13. Each State Party that plans to operate a single small-
scale facility shall provide the Technical Secretariat with the
precise location and a detailed technical description of the
facility, including an inventory of equipment and detailed
diagrams. For existing facilities, this initial declaration
shall be provided not later than 30 days after this Convention
enters into force for the State Party. Initial declarations on
new facilities shall be provided not less than 180 days before
operations are to begin.
14. Each State Party shall give advance notification to the
Technical Secretariat of planned changes related to the initial
declaration. The notification shall be submitted not less than
180 days before the changes are to take place.
15. A State Party producing Schedule 1 chemicals at a
single small-scale facility shall make a detailed annual
declaration regarding the activities of the facility for the
previous year. The declaration shall be submitted not later
than 90 days after the end of that year and shall include:
(a) Identification of the facility;
(b) For each Schedule 1 chemical produced, acquired,
consumed or stored at the facility, the following
information:
(i) The chemical name, structural formula and
Chemical Abstracts Service registry number, if
assigned;
(ii) The methods employed and quantity
produced;
(iii) The name and quantity of precursors
listed in Schedules 1, 2, or 3 used for
production of Schedule 1 chemicals;
(iv) The quantity consumed at the facility
and the purpose(s) of the consumption;
(v) The quantity received from or shipped to
other facilities in the State Party. For each
shipment the quantity, recipient and purpose
should be included;
(vi) The maximum quantity stored at any time
during the year; and
(vii) The quantity stored at the end of the
year; and
(c) Information on any changes at the facility during
the year compared to previously submitted detailed
technical descriptions of the facility including
inventories of equipment and detailed diagrams.
16. Each State Party producing Schedule 1 chemicals at a
single small-scale facility shall make a detailed annual
declaration regarding the projected activities and the
anticipated production at the facility for the coming year. The
declaration shall be submitted not less than 90 days before the
beginning of that year and shall include:
(a) Identification of the facility;
(b) For each Schedule 1 chemical anticipated to be
produced, consumed or stored at the facility, the
following information:
(i) The chemical name, structural formula and
Chemical Abstracts Service registry number, if
assigned;
(ii) The quantity anticipated to be produced
and the purpose of the production; and
(c) Information on any anticipated changes at the
facility during the year compared to previously
submitted detailed technical descriptions of the
facility including inventories of equipment and
detailed diagrams.
Other facilities referred to in paragraphs 10 and 11
17. For each facility, a State Party shall provide the
Technical Secretariat with the name, location and a detailed
technical description of the facility or its relevant part(s)
as requested by the Technical Secretariat. The facility
producing Schedule 1 chemicals for protective purposes shall be
specifically identified. For existing facilities, this initial
declaration shall be provided not later than 30 days after this
Convention enters into force for the State Party. Initial
declarations on new facilities shall be provided not less than
180 days before operations are to begin.
18. Each State Party shall give advance notification to the
Technical Secretariat of planned changes related to the initial
declaration. The notification shall be submitted not less than
180 days before the changes are to take place.
19. Each State Party shall, for each facility, make a
detailed annual declaration regarding the activities of the
facility for the previous year. The declaration shall be
submitted not later than 90 days after the end of that year and
shall include:
(a) Identification of the facility;
(b) For each Schedule 1 chemical the following
information:
(i) The chemical name, structural formula and
Chemical Abstracts Service registry number, if
assigned;
(ii) The quantity produced and, in case of
production for protective purposes, methods
employed;
(iii) The name and quantity of precursors
listed in Schedules 1, 2, or 3, used for
production of Schedule 1 chemicals;
(iv) The quantity consumed at the facility
and the purpose of the consumption;
(v) The quantity transferred to other
facilities within the State Party. For each
transfer the quantity, recipient and purpose
should be included;
(vi) The maximum quantity stored at any time
during the year; and
(vii) The quantity stored at the end of the
year; and
(c) Information on any changes at the facility or its
relevant parts during the year compared to previously
submitted detailed technical description of the
facility.
20. Each State Party shall, for each facility, make a
detailed annual declaration regarding the projected activities
and the anticipated production at the facility for the coming
year. The declaration shall be submitted not less than 90 days
before the beginning of that year and shall include:
(a) Identification of the facility;
(b) For each Schedule 1 chemical the following
information:
(i) The chemical name, structural formula and
Chemical Abstracts Service registry number, if
assigned; and
(ii) The quantity anticipated to be produced,
the time periods when the production is
anticipated to take place and the purposes of
the production; and
(c) Information on any anticipated changes at the
facility or its relevant parts, during the year
compared to previously submitted detailed technical
descriptions of the facility.
E. Verification
Single small-scale facility
21. The aim of verification activities at the single small-
scale facility shall be to verify that the quantities of
Schedule 1 chemicals produced are correctly declared and, in
particular, that their aggregate amount does not exceed 1
tonne.
22. The facility shall be subject to systematic
verification through on-site inspection and monitoring with on-
site instruments.
23. The number, intensity, duration, timing and mode of
inspections for a particular facility shall be based on the
risk to the object and purpose of this Convention posed by the
relevant chemicals, the characteristics of the facility and the
nature of the activities carried out there. Appropriate
guidelines shall be considered and approved by the Conference
pursuant to Article VIII, paragraph 21 (i).
24. The purpose of the initial inspection shall be to
verify information provided concerning the facility, including
verification of the limits on reaction vessels set forth in
paragraph 9.
25. Not later than 180 days after this Convention enters
into force for a State Party, it shall conclude a facility
agreement, based on a model agreement, with the Organization,
covering detailed inspection procedures for the facility.
26. Each State Party planning to establish a single small-
scale facility after this Convention enters into force for it
shall conclude a facility agreement, based on a model
agreement, with the Organization, covering detailed inspection
procedures for the facility before it begins operation or is
used.
27. A model for agreements shall be considered and approved
by the Conference pursuant to Article VIII, paragraph 21 (i).
Other facilities referred to in paragraphs 10 and 11
28. The aim of verification activities at any facility
referred to in paragraphs 10 and 11 shall be to verify that:
(a) The facility is not used to produce any Schedule
1 chemical, except for the declared chemicals;
(b) The quantities of Schedule 1 chemicals produced,
processed or consumed are correctly declared and
consistent with needs for the declared purpose; and
(c) The Schedule 1 chemical is not diverted or used
for other purposes.
29. The facility shall be subject to systematic
verification through on-site inspection and monitoring with on-
site instruments.
30. The number, intensity, duration, timing and mode of
inspections for a particular facility shall be based on the
risk to the object and purpose of this Convention posed by the
quantities of chemicals produced, the characteristics of the
facility and the nature of the activities carried out there.
Appropriate guidelines shall be considered and approved by the
Conference pursuant to Article VIII, paragraph 21 (i).
31. Not later than 180 days after this Convention enters
into force for a State Party, it shall conclude facility
agreements with the Organization, based on a model agreement
covering detailed inspection procedures for each facility.
32. Each State Party planning to establish such a facility
after entry into force of this Convention shall conclude a
facility agreement with the Organization before the facility
begins operation or is used.
Part VII
ACTIVITIES NOT PROHIBITED UNDER THIS CONVENTION IN ACCORDANCE WITH
ARTICLE VI
REGIME FOR SCHEDULE 2 CHEMICALS AND FACILITIES RELATED TO SUCH
CHEMICALS
A. Declarations
Declarations of aggregate national data
1. The initial and annual declarations to be provided by
each State Party pursuant to Article VI, paragraphs 7 and 8,
shall include aggregate national data for the previous calendar
year on the quantities produced, processed, consumed, imported
and exported of each Schedule 2 chemical, as well as a
quantitative specification of import and export for each
country involved.
2. Each State Party shall submit:
(a) Initial declarations pursuant to paragraph 1 not
later than 30 days after this Convention enters into
force for it; and, starting in the following calendar
year,
(b) Annual declarations not later than 90 days after
the end of the previous calendar year.
Declarations of plant sites producing, processing or
consuming Schedule 2 chemicals
3. Initial and annual declarations are required for all
plant sites that comprise one or more plant(s) which produced,
processed or consumed during any of the previous three calendar
years or is anticipated to produce, process or consume in the
next calendar year more than:
(a) 1 kg of a chemical designated ``*'' in Schedule
2, part A;
(b) 100 kg of any other chemical listed in Schedule
2, part A; or
(c) 1 tonne of a chemical listed in Schedule 2, part
B.
4. Each State Party shall submit:
(a) Initial declarations pursuant to paragraph 3 not
later than 30 days after this Convention enters into
force for it; and, starting in the following calendar
year;
(b) Annual declarations on past activities not later
than 90 days after the end of the previous calendar
year;
(c) Annual declarations on anticipated activities not
later than 60 days before the beginning of the
following calendar year. Any such activity additionally
planned after the annual declaration has been submitted
shall be declared not later than five days before this
activity begins.
5. Declarations pursuant to paragraph 3 are generally not
required for mixtures containing a low concentration of a
Schedule 2 chemical. They are only required, in accordance with
guidelines, in cases where the ease of recovery from the
mixture of the Schedule 2 chemical and its total weight are
deemed to pose a risk to the object and purpose of this
Convention. These guidelines shall be considered and approved
by the Conference pursuant to Article VIII, paragraph 21 (i).
6. Declarations of a plant site pursuant to paragraph 3
shall include:
(a) The name of the plant site and the name of the
owner, company, or enterprise operating it;
(b) Its precise location including the address; and
(c) The number of plants within the plant site which
are declared pursuant to Part VIII of this Annex.
7. Declarations of a plant site pursuant to paragraph 3
shall also include, for each plant which is located within the
plant site and which falls under the specifications set forth
in paragraph 3, the following information:
(a) The name of the plant and the name of the owner,
company, or enterprise operating it;
(b) Its precise location within the plant site
including the specific building or structure number, if
any;
(c) Its main activities;
(d) Whether the plant:
(i) Produces, processes, or consumes the
declared Schedule 2 chemical(s);
(ii) Is dedicated to such activities or
multi-purpose; and
(iii) Performs other activities with regard
to the declared Schedule 2 chemical(s),
including a specification of that other
activity (e.g. storage); and
(e) The production capacity of the plant for each
declared Schedule 2 chemical.
8. Declarations of a plant site pursuant to paragraph 3
shall also include the following information on each Schedule 2
chemical above the declaration threshold:
(a) The chemical name, common or trade name used by
the facility, structural formula, and Chemical
Abstracts Service registry number, if assigned;
(b) In the case of the initial declaration: the total
amount produced, processed, consumed, imported and
exported by the plant site in each of the three
previous calendar years;
(c) In the case of the annual declaration on past
activities: the total amount produced, processed,
consumed, imported and exported by the plant site in
the previous calendar year;
(d) In the case of the annual declaration on
anticipated activities: the total amount anticipated to
be produced, processed or consumed by the plant site in
the following calendar year, including the anticipated
time periods for production, processing or consumption;
and
(e) The purposes for which the chemical was or will
be produced, processed or consumed:
(i) Processing and consumption on site with a
specification of the product types;
(ii) Sale or transfer within the territory or
to any other place under the jurisdiction or
control of the State Party, with a
specification whether to other industry, trader
or other destination and, if possible, of final
product types;
(iii) Direct export, with a specification of
the States involved; or
(iv) Other, including a specification of
these other purposes.
Declarations on past production of Schedule 2 chemicals for
chemical weapons purposes
9. Each State Party shall, not later than 30 days after
this Convention enters into force for it, declare all plant
sites comprising plants that produced at any time since 1
January 1946 a Schedule 2 chemical for chemical weapons
purposes.
10. Declarations of a plant site pursuant to paragraph 9
shall include:
(a) The name of the plant site and the name of the
owner, company, or enterprise operating it;
(b) Its precise location including the address;
(c) For each plant which is located within the plant
site, and which falls under the specifications set
forth in paragraph 9, the same information as required
under paragraph 7, subparagraphs (a) to (e); and
(d) For each Schedule 2 chemical produced for
chemical weapons purposes:
(i) The chemical name, common or trade name
used by the plant site for chemical weapons
production purposes, structural formula, and
Chemical Abstracts Service registry number, if
assigned;
(ii) The dates when the chemical was produced
and the quantity produced; and
(iii) The location to which the chemical was
delivered and the final product produced there,
if known.
Information to States Parties
11. A list of plant sites declared under this Section
together with the information provided under paragraphs 6, 7
(a), 7 (c), 7 (d) (i), 7 (d) (iii), 8 (a) and 10 shall be
transmitted by the Technical Secretariat to States Parties upon
request.
B. Verification
General
12. Verification provided for in Article VI, paragraph 4,
shall be carried out through on-site inspection at those of the
declared plant sites that comprise one or more plants which
produced, processed or consumed during any of the previous
three calendar years or are anticipated to produce, process or
consume in the next calendar year more than:
(a) 10 kg of a chemical designated ``*'' in Schedule
2, part A;
(b) 1 tonne of any other chemical listed in Schedule
2, part A; or
(c) 10 tonnes of a chemical listed in Schedule 2,
part B.
13. The programme and budget of the Organization to be
adopted by the Conference pursuant to Article VIII, paragraph
21 (a) shall contain, as a separate item, a programme and
budget for verification under this Section. In the allocation
of resources made available for verification under Article VI,
the Technical Secretariat shall, during the first three years
after the entry into force of this Convention, give priority to
the initial inspections of plant sites declared under Section
A. The allocation shall thereafter be reviewed on the basis of
the experience gained.
14. The Technical Secretariat shall conduct initial
inspections and subsequent inspections in accordance with
paragraphs 15 to 22.
Inspection aims
15. The general aim of inspections shall be to verify that
activities are in accordance with obligations under this
Convention and consistent with the information to be provided
in declarations. Particular aims of inspections at plant sites
declared under Section A shall include verification of:
(a) The absence of any Schedule 1 chemical,
especially its production, except if in accordance with
Part VI of this Annex;
(b) Consistency with declarations of levels of
production, processing or consumption of Schedule 2
chemicals; and
(c) Non-diversion of Schedule 2 chemicals for
activities prohibited under this Convention.
Initial inspections
16. Each plant site to be inspected pursuant to paragraph
12 shall receive an initial inspection as soon as possible but
preferably not later than three years after entry into force of
this Convention. Plant sites declared after this period shall
receive an initial inspection not later than one year after
production, processing or consumption is first declared.
Selection of plant sites for initial inspections shall be made
by the Technical Secretariat in such a way as to preclude the
prediction of precisely when the plant site is to be inspected.
17. During the initial inspection, a draft facility
agreement for the plant site shall be prepared unless the
inspected State Party and the Technical Secretariat agree that
it is not needed.
18. With regard to frequency and intensity of subsequent
inspections, inspectors shall during the initial inspection
assess the risk to the object and purpose of this Convention
posed by the relevant chemicals, the characteristics of the
plant site and the nature of the activities carried out there,
taking into account, inter alia, the following criteria:
(a) The toxicity of the scheduled chemicals and of
the end-products produced with it, if any;
(b) The quantity of the scheduled chemicals typically
stored at the inspected site;
(c) The quantity of feedstock chemicals for the
scheduled chemicals typically stored at the inspected
site;
(d) The production capacity of the Schedule 2 plants;
and
(e) The capability and convertibility for initiating
production, storage and filling of toxic chemicals at
the inspected site.
Inspections
19. Having received the initial inspection, each plant site
to be inspected pursuant to paragraph 12 shall be subject to
subsequent inspections.
20. In selecting particular plant sites for inspection and
in deciding on the frequency and intensity of inspections, the
Technical Secretariat shall give due consideration to the risk
to the object and purpose of this Convention posed by the
relevant chemical, the characteristics of the plant site and
the nature of the activities carried out there, taking into
account the respective facility agreement as well as the
results of the initial inspections and subsequent inspections.
21. The Technical Secretariat shall choose a particular
plant site to be inspected in such a way as to preclude the
prediction of exactly when it will be inspected.
22. No plant site shall receive more than two inspections
per calendar year under the provisions of this Section. This,
however, shall not limit inspections pursuant to Article IX.
Inspection procedures
23. In addition to agreed guidelines, other relevant
provisions of this Annex and the Confidentiality Annex,
paragraphs 24 to 30 below shall apply.
24. A facility agreement for the declared plant site shall
be concluded not later than 90 days after completion of the
initial inspection between the inspected State Party and the
Organization unless the inspected State Party and the Technical
Secretariat agree that it is not needed. It shall be based on a
model agreement and govern the conduct of inspections at the
declared plant site. The agreement shall specify the frequency
and intensity of inspections as well as detailed inspection
procedures, consistent with paragraphs 25 to 29.
25. The focus of the inspection shall be the declared
Schedule 2 plant(s) within the declared plant site. If the
inspection team requests access to other parts of the plant
site, access to these areas shall be granted in accordance with
the obligation to provide clarification pursuant to Part II,
paragraph 51, of this Annex and in accordance with the facility
agreement, or, in the absence of a facility agreement, in
accordance with the rules of managed access as specified in
Part X, Section C, of this Annex.
26. Access to records shall be provided, as appropriate, to
provide assurance that there has been no diversion of the
declared chemical and that production has been consistent with
declarations.
27. Sampling and analysis shall be undertaken to check for
the absence of undeclared scheduled chemicals.
28. Areas to be inspected may include:
(a) Areas where feed chemicals (reactants) are
delivered or stored;
(b) Areas where manipulative processes are performed
upon the reactants prior to addition to the reaction
vessels;
(c) Feed lines as appropriate from the areas referred
to in subparagraph (a) or subparagraph (b) to the
reaction vessels together with any associated valves,
flow meters, etc.;
(d) The external aspect of the reaction vessels and
ancillary equipment;
(e) Lines from the reaction vessels leading to long-
or short-term storage or to equipment further
processing the declared Schedule 2 chemicals;
(f) Control equipment associated with any of the
items under subparagraphs (a) to (e);
(g) Equipment and areas for waste and effluent
handling;
(h) Equipment and areas for disposition of chemicals
not up to specification.
29. The period of inspection shall not last more than 96
hours; however, extensions may be agreed between the inspection
team and the inspected State Party.
Notification of inspection
30. A State Party shall be notified by the Technical
Secretariat of the inspection not less than 48 hours before the
arrival of the inspection team at the plant site to be
inspected.
C. Transfers to States not party to this convention
31. Schedule 2 chemicals shall only be transferred to or
received from States Parties. This obligation shall take effect
three years after entry into force of this Convention.
32. During this interim three-year period, each State Party
shall require an end-use certificate, as specified below, for
transfers of Schedule 2 chemicals to States not Party to this
Convention. For such transfers, each State Party shall adopt
the necessary measures to ensure that the transferred chemicals
shall only be used for purposes not prohibited under this
Convention. Inter alia, the State Party shall require from the
recipient State a certificate stating, in relation to the
transferred chemicals:
(a) That they will only be used for purposes not
prohibited under this Convention;
(b) That they will not be re-transferred;
(c) Their types and quantities;
(d) Their end-use(s); and
(e) The name(s) and address(es) of the end-user(s).
Part VIII
ACTIVITIES NOT PROHIBITED UNDER THIS CONVENTION IN ACCORDANCE WITH
ARTICLE VI
REGIME FOR SCHEDULE 3 CHEMICALS AND FACILITIES RELATED TO SUCH
CHEMICALS
A. Declarations
Declarations of aggregate national data
1. The initial and annual declarations to be provided by a
State Party pursuant to Article VI, paragraphs 7 and 8, shall
include aggregate national data for the previous calendar year
on the quantities produced, imported and exported of each
Schedule 3 chemical, as well as a quantitative specification of
import and export for each country involved.
2. Each State Party shall submit:
(a) Initial declarations pursuant to paragraph 1 not
later than 30 days after this Convention enters into
force for it; and, starting in the following calendar
year,
(b) Annual declarations not later than 90 days after
the end of the previous calendar year.
Declarations of plant sites producing Schedule 3 chemicals
3. Initial and annual declarations are required for all
plant sites that comprise one or more plants which produced
during the previous calendar year or are anticipated to produce
in the next calendar year more than 30 tonnes of a Schedule 3
chemical.
4. Each State Party shall submit:
(a) Initial declarations pursuant to paragraph 3 not
later than 30 days after this Convention enters into
force for it; and, starting in the following calendar
year;
(b) Annual declarations on past activities not later
than 90 days after the end of the previous calendar
year;
(c) Annual declarations on anticipated activities not
later than 60 days before the beginning of the
following calendar year. Any such activity additionally
planned after the annual declaration has been submitted
shall be declared not later than five days before this
activity begins.
5. Declarations pursuant to paragraph 3 are generally not
required for mixtures containing a low concentration of a
Schedule 3 chemical. They are only required, in accordance with
guidelines, in such cases where the ease of recovery from the
mixture of the Schedule 3 chemical and its total weight are
deemed to pose a risk to the object and purpose of this
Convention. These guidelines shall be considered and approved
by the Conference pursuant to Article VIII, paragraph 21 (i).
6. Declarations of a plant site pursuant to paragraph 3
shall include:
(a) The name of the plant site and the name of the
owner, company, or enterprise operating it;
(b) Its precise location including the address; and
(c) The number of plants within the plant site which
are declared pursuant to Part VII of this Annex.
7. Declarations of a plant site pursuant to paragraph 3
shall also include, for each plant which is located within the
plant site and which falls under the specifications set forth
in paragraph 3, the following information:
(a) The name of the plant and the name of the owner,
company, or enterprise operating it;
(b) Its precise location within the plant site,
including the specific building or structure number, if
any;
(c) Its main activities.
8. Declarations of a plant site pursuant to paragraph 3
shall also include the following information on each Schedule 3
chemical above the declaration threshold:
(a) The chemical name, common or trade name used by
the facility, structural formula, and Chemical
Abstracts Service registry number, if assigned;
(b) The approximate amount of production of the
chemical in the previous calendar year, or, in case of
declarations on anticipated activities, anticipated for
the next calendar year, expressed in the ranges: 30 to
200 tonnes, 200 to 1,000 tonnes, 1,000 to 10,000
tonnes, 10,000 to 100,000 tonnes, and above 100,000
tonnes; and
(c) The purposes for which the chemical was or will
be produced.
Declarations on past production of Schedule 3 chemicals for
chemical weapons purposes
9. Each State Party shall, not later than 30 days after
this Convention enters into force for it, declare all plant
sites comprising plants that produced at any time since 1
January 1946 a Schedule 3 chemical for chemical weapons
purposes.
10. Declarations of a plant site pursuant to paragraph 9
shall include:
(a) The name of the plant site and the name of the
owner, company, or enterprise operating it;
(b) Its precise location including the address;
(c) For each plant which is located within the plant
site, and which falls under the specifications set
forth in paragraph 9, the same information as required
under paragraph 7, subparagraphs (a) to (c); and
(d) For each Schedule 3 chemical produced for
chemical weapons purposes:
(i) The chemical name, common or trade name
used by the plant site for chemical weapons
production purposes, structural formula, and
Chemical Abstracts Service registry number, if
assigned;
(ii) The dates when the chemical was produced
and the quantity produced; and
(iii) The location to which the chemical was
delivered and the final product produced there,
if known.
Information to States Parties
11. A list of plant sites declared under this Section
together with the information provided under paragraphs 6, 7
(a), 7 (c), 8 (a) and 10 shall be transmitted by the Technical
Secretariat to States Parties upon request.
B. Verification
General
12. Verification provided for in paragraph 5 of Article VI
shall be carried out through on-site inspections at those
declared plant sites which produced during the previous
calendar year or are anticipated to produce in the next
calendar year in excess of 200 tonnes aggregate of any Schedule
3 chemical above the declaration threshold of 30 tonnes.
13. The programme and budget of the Organization to be
adopted by the Conference pursuant to Article VIII, paragraph
21 (a), shall contain, as a separate item, a programme and
budget for verification under this Section taking into account
Part VII, paragraph 13, of this Annex.
14. Under this Section, the Technical Secretariat shall
randomly select plant sites for inspection through appropriate
mechanisms, such as the use of specially designed computer
software, on the basis of the following weighting factors:
(a) Equitable geographical distribution of
inspections; and
(b) The information on the declared plant sites
available to the Technical Secretariat, related to the
relevant chemical, the characteristics of the plant
site and the nature of the activities carried out
there.
15. No plant site shall receive more than two inspections
per year under the provisions of this Section. This, however,
shall not limit inspections pursuant to Article IX.
16. In selecting plant sites for inspection under this
Section, the Technical Secretariat shall observe the following
limitation for the combined number of inspections to be
received by a State Party per calendar year under this Part and
Part IX of this Annex: the combined number of inspections shall
not exceed three plus 5 percent of the total number of plant
sites declared by a State Party under both this Part and Part
IX of this Annex, or 20 inspections, whichever of these two
figures is lower.
Inspection aims
17. At plant sites declared under Section A, the general
aim of inspections shall be to verify that activities are
consistent with the information to be provided in declarations.
The particular aim of inspections shall be the verification of
the absence of any Schedule 1 chemical, especially its
production, except if in accordance with Part VI of this Annex.
Inspection procedures
18. In addition to agreed guidelines, other relevant
provisions of this Annex and the Confidentiality Annex,
paragraphs 19 to 25 below shall apply.
19. There shall be no facility agreement, unless requested
by the inspected State Party.
20. The focus of the inspections shall be the declared
Schedule 3 plant(s) within the declared plant site. If the
inspection team, in accordance with Part II, paragraph 51, of
this Annex, requests access to other parts of the plant site
for clarification of ambiguities, the extent of such access
shall be agreed between the inspection team and the inspected
State Party.
21. The inspection team may have access to records in
situations in which the inspection team and the inspected State
Party agree that such access will assist in achieving the
objectives of the inspection.
22. Sampling and on-site analysis may be undertaken to
check for the absence of undeclared scheduled chemicals. In
case of unresolved ambiguities, samples may be analyzed in a
designated off-site laboratory, subject to the inspected State
Party's agreement.
23. Areas to be inspected may include:
(a) Areas where feed chemicals (reactants) are
delivered or stored;
(b) Areas where manipulative processes are performed
upon the reactants prior to addition to the reaction
vessel;
(c) Feed lines as appropriate from the areas referred
to in subparagraph (a) or subparagraph (b) to the
reaction vessel together with any associated valves,
flow meters, etc.;
(d) The external aspect of the reaction vessels and
ancillary equipment;
(e) Lines from the reaction vessels leading to long-
or short-term storage or to equipment further
processing the declared Schedule 3 chemicals;
(f) Control equipment associated with any of the
items under subparagraphs (a) to (e);
(g) Equipment and areas for waste and effluent
handling;
(h) Equipment and areas for disposition of chemicals
not up to specification.
24. The period of inspection shall not last more than 24
hours; however, extensions may be agreed between the inspection
team and the inspected State Party.
Notification of inspection
25. A State Party shall be notified by the Technical
Secretariat of the inspection not less than 120 hours before
the arrival of the inspection team at the plant site to be
inspected.
C. Transfers to states not party to this convention
26. When transferring Schedule 3 chemicals to States not
Party to this Convention, each State Party shall adopt the
necessary measures to ensure that the transferred chemicals
shall only be used for purposes not prohibited under this
Convention. Inter alia, the State Party shall require from the
recipient State a certificate stating, in relation to the
transferred chemicals:
(a) That they will only be used for purposes not
prohibited under this Convention;
(b) That they will not be re-transferred;
(c) Their types and quantities;
(d) Their end-use(s); and
(e) The name(s) and address(es) of the end-user(s).
27. Five years after entry into force of this Convention,
the Conference shall consider the need to establish other
measures regarding transfers of Schedule 3 chemicals to States
not Party to this Convention.
Part IX
activities not prohibited under this convention in accordance with
article vi
regime for other chemical production facilities
A. Declarations
List of other chemical production facilities
1. The initial declaration to be provided by each State
Party pursuant to Article VI, paragraph 7, shall include a list
of all plant sites that:
(a) Produced by synthesis during the previous
calendar year more than 200 tonnes of unscheduled
discrete organic chemicals; or
(b) Comprise one or more plants which produced by
synthesis during the previous calendar year more than
30 tonnes of an unscheduled discrete organic chemical
containing the elements phosphorus, sulfur or fluorine
(hereinafter referred to as ``PSF-plants'' and ``PSF-
chemical'').
2. The list of other chemical production facilities to be
submitted pursuant to paragraph 1 shall not include plant sites
that exclusively produced explosives or hydrocarbons.
3. Each State Party shall submit its list of other chemical
production facilities pursuant to paragraph 1 as part of its
initial declaration not later than 30 days after this
Convention enters into force for it. Each State Party shall,
not later than 90 days after the beginning of each following
calendar year, provide annually the information necessary to
update the list.
4. The list of other chemical production facilities to be
submitted pursuant to paragraph 1 shall include the following
information on each plant site:
(a) The name of the plant site and the name of the
owner, company, or enterprise operating it;
(b) The precise location of the plant site including
its address;
(c) Its main activities; and
(d) The approximate number of plants producing the
chemicals specified in paragraph 1 in the plant site.
5. With regard to plant sites listed pursuant to paragraph
1 (a), the list shall also include information on the
approximate aggregate amount of production of the unscheduled
discrete organic chemicals in the previous calendar year
expressed in the ranges: under 1,000 tonnes, 1,000 to 10,000
tonnes and above 10,000 tonnes.
6. With regard to plant sites listed pursuant to paragraph
1 (b), the list shall also specify the number of PSF-plants
within the plant site and include information on the
approximate aggregate amount of production of PSF-chemicals
produced by each PSF-plant in the previous calendar year
expressed in the ranges: under 200 tonnes, 200 to 1,000 tonnes,
1,000 to 10,000 tonnes and above 10,000 tonnes.
Assistance by the Technical Secretariat
7. If a State Party, for administrative reasons, deems it
necessary to ask for assistance in compiling its list of
chemical production facilities pursuant to paragraph 1, it may
request the Technical Secretariat to provide such assistance.
Questions as to the completeness of the list shall then be
resolved through consultations between the State Party and the
Technical Secretariat.
Information to States Parties
8. The lists of other chemical production facilities
submitted pursuant to paragraph 1, including the information
provided under paragraph 4, shall be transmitted by the
Technical Secretariat to States Parties upon request.
B. Verification
General
9. Subject to the provisions of Section C, verification as
provided for in Article VI, paragraph 6, shall be carried out
through on-site inspection at:
(a) Plant sites listed pursuant to paragraph 1 (a);
and
(b) Plant sites listed pursuant to paragraph 1 (b)
that comprise one or more PSF-plants which produced
during the previous calendar year more than 200 tonnes
of a PSF-chemical.
10. The programme and budget of the Organization to be
adopted by the Conference pursuant to Article VIII, paragraph
21 (a), shall contain, as a separate item, a programme and
budget for verification under this Section after its
implementation has started.
11. Under this Section, the Technical Secretariat shall
randomly select plant sites for inspection through appropriate
mechanisms, such as the use of specially designed computer
software, on the basis of the following weighting factors:
(a) Equitable geographical distribution of
inspections;
(b) The information on the listed plant sites
available to the Technical Secretariat, related to the
characteristics of the plant site and the activities
carried out there; and
(c) Proposals by States Parties on a basis to be
agreed upon in accordance with paragraph 25.
12. No plant site shall receive more than two inspections
per year under the provisions of this Section. This, however,
shall not limit inspections pursuant to Article IX.
13. In selecting plant sites for inspection under this
Section, the Technical Secretariat shall observe the following
limitation for the combined number of inspections to be
received by a State Party per calendar year under this Part and
Part VIII of this Annex: the combined number of inspections
shall not exceed three plus 5 per cent of the total number of
plant sites declared by a State Party under both this Part and
Part VIII of this Annex, or 20 inspections, whichever of these
two figures is lower.
Inspection aims
14. At plant sites listed under Section A, the general aim
of inspections shall be to verify that activities are
consistent with the information to be provided in declarations.
The particular aim of inspections shall be the verification of
the absence of any Schedule 1 chemical, especially its
production, except if in accordance with Part VI of this Annex.
Inspection procedures
15. In addition to agreed guidelines, other relevant
provisions of this Annex and the Confidentiality Annex,
paragraphs 16 to 20 below shall apply.
16. There shall be no facility agreement, unless requested
by the inspected State Party.
17. The focus of inspection at a plant site selected for
inspection shall be the plant(s) producing the chemicals
specified in paragraph 1, in particular the PSF-plants listed
pursuant to paragraph 1 (b). The inspected State Party shall
have the right to manage access to these plants in accordance
with the rules of managed access as specified in Part X,
Section C, of this Annex. If the inspection team, in accordance
with Part II, paragraph 51, of this Annex, requests access to
other parts of the plant site for clarification of ambiguities,
the extent of such access shall be agreed between the
inspection team and the inspected State Party.
18. The inspection team may have access to records in
situations in which the inspection team and the inspected State
Party agree that such access will assist in achieving the
objectives of the inspection.
19. Sampling and on-site analysis may be undertaken to
check for the absence of undeclared scheduled chemicals. In
cases of unresolved ambiguities, samples may be analyzed in a
designated off-site laboratory, subject to the inspected State
Party's agreement.
20. The period of inspection shall not last more than 24
hours; however, extensions may be agreed between the inspection
team and the inspected State Party.
Notification of inspection
21. A State Party shall be notified by the Technical
Secretariat of the inspection not less than 120 hours before
the arrival of the inspection team at the plant site to be
inspected.
C. Implementation and review of Section B
Implementation
22. The implementation of Section B shall start at the
beginning of the fourth year after entry into force of this
Convention unless the Conference, at its regular session in the
third year after entry into force of this Convention, decides
otherwise.
23. The Director-General shall, for the regular session of
the Conference in the third year after entry into force of this
Convention, prepare a report which outlines the experience of
the Technical Secretariat in implementing the provisions of
Parts VII and VIII of this Annex as well as of Section A of
this Part.
24. At its regular session in the third year after entry
into force of this Convention, the Conference, on the basis of
a report of the Director-General, may also decide on the
distribution of resources available for verification under
Section B between ``PSF-plants'' and other chemical production
facilities. Otherwise, this distribution shall be left to the
expertise of the Technical Secretariat and be added to the
weighting factors in paragraph 11.
25. At its regular session in the third year after entry
into force of this Convention, the Conference, upon advice of
the Executive Council, shall decide on which basis (e.g.
regional) proposals by States Parties for inspections should be
presented to be taken into account as a weighting factor in the
selection process specified in paragraph 11.
Review
26. At the first special session of the Conference convened
pursuant to Article VIII, paragraph 22, the provisions of this
Part of the Verification Annex shall be re-examined in the
light of a comprehensive review of the overall verification
regime for the chemical industry (Article VI, Parts VII to IX
of this Annex) on the basis of the experience gained. The
Conference shall then make recommendations so as to improve the
effectiveness of the verification regime.
Part X
challenge inspections pursuant to article ix
A. Designation and selection of inspectors and inspection assistants
1. Challenge inspections pursuant to Article IX shall only
be performed by inspectors and inspection assistants especially
designated for this function. In order to designate inspectors
and inspection assistants for challenge inspections pursuant to
Article IX, the Director-General shall, by selecting inspectors
and inspection assistants from among the inspectors and
inspection assistants for routine inspection activities,
establish a list of proposed inspectors and inspection
assistants. It shall comprise a sufficiently large number of
inspectors and inspection assistants having the necessary
qualification, experience, skill and training, to allow for
flexibility in the selection of the inspectors, taking into
account their availability, and the need for rotation. Due
regard shall be paid also to the importance of selecting
inspectors and inspection assistants on as wide a geographical
basis as possible. The designation of inspectors and inspection
assistants shall follow the procedures provided for under Part
II, Section A, of this Annex.
2. The Director-General shall determine the size of the
inspection team and select its members taking into account the
circumstances of a particular request. The size of the
inspection team shall be kept to a minimum necessary for the
proper fulfillment of the inspection mandate. No national of
the requesting State Party or the inspected State Party shall
be a member of the inspection team.
B. Pre-inspection activities
3. Before submitting the inspection request for a challenge
inspection, the State Party may seek confirmation from the
Director-General that the Technical Secretariat is in a
position to take immediate action on the request. If the
Director-General cannot provide such confirmation immediately,
he shall do so at the earliest opportunity, in keeping with the
order of requests for confirmation. He shall also keep the
State Party informed of when it is likely that immediate action
can be taken. Should the Director-General reach the conclusion
that timely action on requests can no longer be taken, he may
ask the Executive Council to take appropriate action to improve
the situation in the future.
Notification
4. The inspection request for a challenge inspection to be
submitted to the Executive Council and the Director-General
shall contain at least the following information:
(a) The State Party to be inspected and, if
applicable, the Host State;
(b) The point of entry to be used;
(c) The size and type of the inspection site;
(d) The concern regarding possible non-compliance
with this Convention including a specification of the
relevant provisions of this Convention about which the
concern has arisen, and of the nature and circumstances
of the possible non-compliance as well as all
appropriate information on the basis of which the
concern has arisen; and
(e) The name of the observer of the requesting State
Party.
The requesting State Party may submit any additional
information it deems necessary.
5. The Director-General shall within one hour acknowledge
to the requesting State Party receipt of its request.
6. The requesting State Party shall notify the Director-
General of the location of the inspection site in due time for
the Director-General to be able to provide this information to
the inspected State Party not less than 12 hours before the
planned arrival of the inspection team at the point of entry.
7. The inspection site shall be designated by the
requesting State Party as specifically as possible by providing
a site diagram related to a reference point with geographic
coordinates, specified to the nearest second if possible. If
possible, the requesting State Party shall also provide a map
with a general indication of the inspection site and a diagram
specifying as precisely as possible the requested perimeter of
the site to be inspected.
8. The requested perimeter shall:
(a) Run at least a 10 meter distance outside any
buildings or other structures;
(b) Not cut through existing security enclosures; and
(c) Run at least a 10 meter distance outside any
existing security enclosures that the requesting State
Party intends to include within the requested
perimeter.
9. If the requested perimeter does not conform with the
specifications of paragraph 8, it shall be redrawn by the
inspection team so as to conform with that provision.
10. The Director-General shall, not less than 12 hours
before the planned arrival of the inspection team at the point
of entry, inform the Executive Council about the location of
the inspection site as specified in paragraph 7.
11. Contemporaneously with informing the Executive Council
according to paragraph 10, the Director-General shall transmit
the inspection request to the inspected State Party including
the location of the inspection site as specified in paragraph
7. This notification shall also include the information
specified in Part II, paragraph 32, of this Annex.
12. Upon arrival of the inspection team at the point of
entry, the inspected State Party shall be informed by the
inspection team of the inspection mandate.
Entry into the territory of the inspected State Party or
the Host State
13. The Director-General shall, in accordance with Article
IX, paragraphs 13 to 18, dispatch an inspection team as soon as
possible after an inspection request has been received. The
inspection team shall arrive at the point of entry specified in
the request in the minimum time possible, consistent with the
provisions of paragraphs 10 and 11.
14. If the requested perimeter is acceptable to the
inspected State Party, it shall be designated as the final
perimeter as early as possible, but in no case later than 24
hours after the arrival of the inspection team at the point of
entry. The inspected State Party shall transport the inspection
team to the final perimeter of the inspection site. If the
inspected State Party deems it necessary, such transportation
may begin up to 12 hours before the expiry of the time period
specified in this paragraph for the designation of the final
perimeter. Transportation shall, in any case, be completed not
later than 36 hours after the arrival of the inspection team at
the point of entry.
15. For all declared facilities, the procedures in
subparagraphs (a) and (b) shall apply. (For the purposes of
this Part, ``declared facility'' means all facilities declared
pursuant to Articles III, IV, and V. With regard to Article VI,
``declared facility'' means only facilities declared pursuant
to Part VI of this Annex, as well as declared plants specified
by declarations pursuant to Part VII, paragraphs 7 and 10 (c),
and Part VIII, paragraphs 7 and 10 (c), of this Annex.)
(a) If the requested perimeter is contained within
or conforms with the declared perimeter, the declared
perimeter shall be considered the final perimeter. The
final perimeter may, however, if agreed by the
inspected State Party, be made smaller in order to
conform with the perimeter requested by the requesting
State Party.
(b) The inspected State Party shall transport the
inspection team to the final perimeter as soon as
practicable, but in any case shall ensure their arrival
at the perimeter not later than 24 hours after the
arrival of the inspection team at the point of entry.
Alternative determination of final perimeter
16. At the point of entry, if the inspected State Party
cannot accept the requested perimeter, it shall propose an
alternative perimeter as soon as possible, but in any case not
later than 24 hours after the arrival of the inspection team at
the point of entry. In case of differences of opinion, the
inspected State Party and the inspection team shall engage in
negotiations with the aim of reaching agreement on a final
perimeter.
17. The alternative perimeter should be designated as
specifically as possible in accordance with paragraph 8. It
shall include the whole of the requested perimeter and should,
as a rule, bear a close relationship to the latter, taking into
account natural terrain features and man-made boundaries. It
should normally run close to the surrounding security barrier
if such a barrier exists. The inspected State Party should seek
to establish such a relationship between the perimeters by a
combination of at least two of the following means:
(a) An alternative perimeter that does not extend to
an area significantly greater than that of the
requested perimeter;
(b) An alternative perimeter that is a short,
uniform distance from the requested perimeter;
(c) At least part of the requested perimeter is
visible from the alternative perimeter.
18. If the alternative perimeter is acceptable to the
inspection team, it shall become the final perimeter and the
inspection team shall be transported from the point of entry to
that perimeter. If the inspected State Party deems it
necessary, such transportation may begin up to 12 hours before
the expiry of the time period specified in paragraph 16 for
proposing an alternative perimeter. Transportation shall, in
any case, be completed not later than 36 hours after the
arrival of the inspection team at the point of entry.
19. If a final perimeter is not agreed, the perimeter
negotiations shall be concluded as early as possible, but in no
case shall they continue more than 24 hours after the arrival
of the inspection team at the point of entry. If no agreement
is reached, the inspected State Party shall transport the
inspection team to a location at the alternative perimeter. If
the inspected State Party deems it necessary, such
transportation may begin up to 12 hours before the expiry of
the time period specified in paragraph 16 for proposing an
alternative perimeter. Transportation shall, in any case, be
completed not later than 36 hours after the arrival of the
inspection team at the point of entry.
20. Once at the location, the inspected State Party shall
provide the inspection team with prompt access to the
alternative perimeter to facilitate negotiations and agreement
on the final perimeter and access within the final perimeter.
21. If no agreement is reached within 72 hours after the
arrival of the inspection team at the location, the alternative
perimeter shall be designated the final perimeter.
Verification of location
22. To help establish that the inspection site to which the
inspection team has been transported corresponds to the
inspection site specified by the requesting State Party, the
inspection team shall have the right to use approved location-
finding equipment and have such equipment installed according
to its directions. The inspection team may verify its location
by reference to local landmarks identified from maps. The
inspected State Party shall assist the inspection team in this
task.
Securing the site, exit monitoring
23. Not later than 12 hours after the arrival of the
inspection team at the point of entry, the inspected State
Party shall begin collecting factual information of all
vehicular exit activity from all exit points for all land, air,
and water vehicles of the requested perimeter. It shall provide
this information to the inspection team upon its arrival at the
alternative or final perimeter, whichever occurs first.
24. This obligation may be met by collecting factual
information in the form of traffic logs, photographs, video
recordings, or data from chemical evidence equipment provided
by the inspection team to monitor such exit activity.
Alternatively, the inspected State Party may also meet this
obligation by allowing one or more members of the inspection
team independently to maintain traffic logs, take photographs,
make video recordings of exit traffic, or use chemical evidence
equipment, and conduct other activities as may be agreed
between the inspected State Party and the inspection team.
25. Upon the inspection team's arrival at the alternative
perimeter or final perimeter, whichever occurs first, securing
the site, which means exit monitoring procedures by the
inspection team, shall begin.
26. Such procedures shall include: the identification of
vehicular exits, the making of traffic logs, the taking of
photographs, and the making of video recordings by the
inspection team of exits and exit traffic. The inspection team
has the right to go, under escort, to any other part of the
perimeter to check that there is no other exit activity.
27. Additional procedures for exit monitoring activities as
agreed upon by the inspection team and the inspected State
Party may include, inter alia:
(a) Use of sensors;
(b) Random selective access;
(c) Sample analysis.
28. All activities for securing the site and exit
monitoring shall take place within a band around the outside of
the perimeter, not exceeding 50 meters in width, measured
outward.
29. The inspection team has the right to inspect on a
managed access basis vehicular traffic exiting the site. The
inspected State Party shall make every reasonable effort to
demonstrate to the inspection team that any vehicle, subject to
inspection, to which the inspection team is not granted full
access, is not being used for purposes related to the possible
non-compliance concerns raised in the inspection request.
30. Personnel and vehicles entering and personnel and
personal passenger vehicles exiting the site are not subject to
inspection.
31. The application of the above procedures may continue
for the duration of the inspection, but may not unreasonably
hamper or delay the normal operation of the facility.
Pre-inspection briefing and inspection plan
32. To facilitate development of an inspection plan, the
inspected State Party shall provide a safety and logistical
briefing to the inspection team prior to access.
33. The pre-inspection briefing shall be held in accordance
with Part II, paragraph 37, of this Annex. In the course of the
pre-inspection briefing, the inspected State Party may indicate
to the inspection team the equipment, documentation, or areas
it considers sensitive and not related to the purpose of the
challenge inspection. In addition, personnel responsible for
the site shall brief the inspection team on the physical layout
and other relevant characteristics of the site. The inspection
team shall be provided with a map or sketch drawn to scale
showing all structures and significant geographic features at
the site. The inspection team shall also be briefed on the
availability of facility personnel and records.
34. After the pre-inspection briefing, the inspection team
shall prepare, on the basis of the information available and
appropriate to it, an initial inspection plan which specifies
the activities to be carried out by the inspection team,
including the specific areas of the site to which access is
desired. The inspection plan shall also specify whether the
inspection team will be divided into subgroups. The inspection
plan shall be made available to the representatives of the
inspected State Party and the inspection site. Its
implementation shall be consistent with the provisions of
Section C, including those related to access and activities.
Perimeter activities
35. Upon the inspection team's arrival at the final or
alternative perimeter, whichever occurs first, the team shall
have the right to commence immediately perimeter activities in
accordance with the procedures set forth under this Section,
and to continue these activities until the completion of the
challenge inspection.
36. In conducting the perimeter activities, the inspection
team shall have the right to:
(a) Use monitoring instruments in accordance with
Part II, paragraphs 27 to 30, of this Annex;
(b) Take wipes, air, soil or effluent samples; and
(c) Conduct any additional activities which may be
agreed between the inspection team and the inspected
State Party.
37. The perimeter activities of the inspection team may be
conducted within a band around the outside of the perimeter up
to 50 meters in width measured outward from the perimeter. If
the inspected State Party agrees, the inspection team may also
have access to any building or structure within the perimeter
band. All directional monitoring shall be oriented inward. For
declared facilities, at the discretion of the inspected State
Party, the band could run inside, outside, or on both sides of
the declared perimeter.
C. Conduct of inspections
General rules
38. The inspected State Party shall provide access within
the requested perimeter as well as, if different, the final
perimeter. The extent and nature of access to a particular
place or places within these perimeters shall be negotiated
between the inspection team and the inspected State Party on a
managed access basis.
39. The inspected State Party shall provide access within
the requested perimeter as soon as possible, but in any case
not later than 108 hours after the arrival of the inspection
team at the point of entry in order to clarify the concern
regarding possible non-compliance with this Convention raised
in the inspection request.
40. Upon the request of the inspection team, the inspected
State Party may provide aerial access to the inspection site.
41. In meeting the requirement to provide access as
specified in paragraph 38, the inspected State Party shall be
under the obligation to allow the greatest degree of access
taking into account any constitutional obligations it may have
with regard to proprietary rights or searches and seizures. The
inspected State Party has the right under managed access to
take such measures as are necessary to protect national
security. The provisions in this paragraph may not be invoked
by the inspected State Party to conceal evasion of its
obligations not to engage in activities prohibited under this
Convention.
42. If the inspected State Party provides less than full
access to places, activities, or information, it shall be under
the obligation to make every reasonable effort to provide
alternative means to clarify the possible non-compliance
concern that generated the challenge inspection.
43. Upon arrival at the final perimeter of facilities
declared pursuant to Articles IV, V and VI, access shall be
granted following the pre-inspection briefing and discussion of
the inspection plan which shall be limited to the minimum
necessary and in any event shall not exceed three hours. For
facilities declared pursuant to Article III, paragraph 1(d),
negotiations shall be conducted and managed access commenced
not later than 12 hours after arrival at the final perimeter.
44. In carrying out the challenge inspection in accordance
with the inspection request, the inspection team shall use only
those methods necessary to provide sufficient relevant facts to
clarify the concern about possible non-compliance with the
provisions of this Convention, and shall refrain from
activities not relevant thereto. It shall collect and document
such facts as are related to the possible non-compliance with
this Convention by the inspected State Party, but shall neither
seek nor document information which is clearly not related
thereto, unless the inspected State Party expressly requests it
to do so. Any material collected and subsequently found not to
be relevant shall not be retained.
45. The inspection team shall be guided by the principle of
conducting the challenge inspection in the least intrusive
manner possible, consistent with the effective and timely
accomplishment of its mission. Wherever possible, it shall
begin with the least intrusive procedures it deems acceptable
and proceed to more intrusive procedures only as it deems
necessary.
Managed access
46. The inspection team shall take into consideration
suggested modifications of the inspection plan and proposals
which may be made by the inspected State Party, at whatever
stage of the inspection including the pre-inspection briefing,
to ensure that sensitive equipment, information or areas, not
related to chemical weapons, are protected.
47. The inspected State Party shall designate the perimeter
entry/exit points to be used for access. The inspection team
and the inspected State Party shall negotiate: the extent of
access to any particular place or places within the final and
requested perimeters as provided in paragraph 48; the
particular inspection activities, including sampling, to be
conducted by the inspection team; the performance of particular
activities by the inspected State Party; and the provision of
particular information by the inspected State Party.
48. In conformity with the relevant provisions in the
Confidentiality Annex the inspected State Party shall have the
right to take measures to protect sensitive installations and
prevent disclosure of confidential information and data not
related to chemical weapons. Such measures may include, inter
alia:
(a) Removal of sensitive papers from office spaces;
(b) Shrouding of sensitive displays, stores, and
equipment;
(c) Shrouding of sensitive pieces of equipment, such
as computer or electronic systems;
(d) Logging off of computer systems and turning off
of data indicating devices;
(e) Restriction of sample analysis to presence or
absence of chemicals listed in Schedules 1, 2 and 3 or
appropriate degradation products;
(f) Using random selective access techniques whereby
the inspectors are requested to select a given
percentage or number of buildings of their choice to
inspect; the same principle can apply to the interior
and content of sensitive buildings;
(g) In exceptional cases, giving only individual
inspectors access to certain parts of the inspection
site.
49. The inspected State Party shall make every reasonable
effort to demonstrate to the inspection team that any object,
building, structure, container or vehicle to which the
inspection team has not had full access, or which has been
protected in accordance with paragraph 48, is not used for
purposes related to the possible non-compliance concerns raised
in the inspection request.
50. This may be accomplished by means of, inter alia, the
partial removal of a shroud or environmental protection cover,
at the discretion of the inspected State Party, by means of a
visual inspection of the interior of an enclosed space from its
entrance, or by other methods.
51. In the case of facilities declared pursuant to Articles
IV, V and VI, the following shall apply:
(a) For facilities with facility agreements, access
and activities within the final perimeter shall be
unimpeded within the boundaries established by the
agreements;
(b) For facilities without facility agreements,
negotiation of access and activities shall be governed
by the applicable general inspection guidelines
established under this Convention;
(c) Access beyond that granted for inspections under
Articles IV, V and VI shall be managed in accordance
with procedures of this section.
52. In the case of facilities declared pursuant to Article
III, paragraph 1 (d), the following shall apply: if the
inspected State Party, using procedures of paragraphs 47 and
48, has not granted full access to areas or structures not
related to chemical weapons, it shall make every reasonable
effort to demonstrate to the inspection team that such areas or
structures are not used for purposes related to the possible
non-compliance concerns raised in the inspection request.
Observer
53. In accordance with the provisions of Article IX,
paragraph 12, on the participation of an observer in the
challenge inspection, the requesting State Party shall liaise
with the Technical Secretariat to coordinate the arrival of the
observer at the same point of entry as the inspection team
within a reasonable period of the inspection team's arrival.
54. The observer shall have the right throughout the period
of inspection to be in communication with the embassy of the
requesting State Party located in the inspected State Party or
in the Host State or, in the case of absence of an embassy,
with the requesting State Party itself. The inspected State
Party shall provide means of communication to the observer.
55. The observer shall have the right to arrive at the
alternative or final perimeter of the inspection site, wherever
the inspection team arrives first, and to have access to the
inspection site as granted by the inspected State Party. The
observer shall have the right to make recommendations to the
inspection team, which the team shall take into account to the
extent it deems appropriate. Throughout the inspection, the
inspection team shall keep the observer informed about the
conduct of the inspection and the findings.
56. Throughout the in-country period, the inspected State
Party shall provide or arrange for the amenities necessary for
the observer such as communication means, interpretation
services, transportation, working space, lodging, meals and
medical care. All the costs in connection with the stay of the
observer on the territory of the inspected State Party or the
Host State shall be borne by the requesting State Party.
Duration of inspection
57. The period of inspection shall not exceed 84 hours,
unless extended by agreement with the inspected State Party.
D. Post-inspection activities
Departure
58. Upon completion of the post-inspection procedures at
the inspection site, the inspection team and the observer of
the requesting State Party shall proceed promptly to a point of
entry and shall then leave the territory of the inspected State
Party in the minimum time possible.
Reports
59. The inspection report shall summarize in a general way
the activities conducted by the inspection team and the factual
findings of the inspection team, particularly with regard to
the concerns regarding possible non-compliance with this
Convention cited in the request for the challenge inspection,
and shall be limited to information directly related to this
Convention. It shall also include an assessment by the
inspection team of the degree and nature of access and
cooperation granted to the inspectors and the extent to which
this enabled them to fulfil the inspection mandate. Detailed
information relating to the concerns regarding possible non-
compliance with this Convention cited in the request for the
challenge inspection shall be submitted as an Appendix to the
final report and be retained within the Technical Secretariat
under appropriate safeguards to protect sensitive information.
60. The inspection team shall, not later than 72 hours
after its return to its primary work location, submit a
preliminary inspection report, having taken into account, inter
alia, paragraph 17 of the Confidentiality Annex, to the
Director-General. The Director-General shall promptly transmit
the preliminary inspection report to the requesting State
Party, the inspected State Party and to the Executive Council.
61. A draft final inspection report shall be made available
to the inspected State Party not later than 20 days after the
completion of the challenge inspection. The inspected State
Party has the right to identify any information and data not
related to chemical weapons which should, in its view, due to
its confidential character, not be circulated outside the
Technical Secretariat. The Technical Secretariat shall consider
proposals for changes to the draft final inspection report made
by the inspected State Party and, using its own discretion,
wherever possible, adopt them. The final report shall then be
submitted not later than 30 days after the completion of the
challenge inspection to the Director-General for further
distribution and consideration in accordance with Article IX,
paragraphs 21 to 25.
Part XI
INVESTIGATIONS IN CASES OF ALLEGED USE OF CHEMICAL WEAPONS
A. General
1. Investigations of alleged use of chemical weapons, or of
alleged use of riot control agents as a method of warfare,
initiated pursuant to Articles IX or X, shall be conducted in
accordance with this Annex and detailed procedures to be
established by the Director-General.
2. The following additional provisions address specific
procedures required in cases of alleged use of chemical
weapons.
B. Pre-inspection activities
Request for an investigation
3. The request for an investigation of an alleged use of
chemical weapons to be submitted to the Director-General, to
the extent possible, should include the following information:
(a) The State Party on whose territory use of
chemical weapons is alleged to have taken place;
(b) The point of entry or other suggested safe routes
of access;
(c) Location and characteristics of the areas where
chemical weapons are alleged to have been used;
(d) When chemical weapons are alleged to have been
used;
(e) Types of chemical weapons believed to have been
used;
(f) Extent of alleged use;
(g) Characteristics of the possible toxic chemicals;
(h) Effects on humans, animals and vegetation;
(i) Request for specific assistance, if applicable.
4. The State Party which has requested an investigation may
submit at any time any additional information it deems
necessary.
Notification
5. The Director-General shall immediately acknowledge
receipt to the requesting State Party of its request and inform
the Executive Council and all States Parties.
6. If applicable, the Director-General shall notify the
State Party on whose territory an investigation has been
requested. The Director-General shall also notify other States
Parties if access to their territories might be required during
the investigation.
Assignment of inspection team
7. The Director-General shall prepare a list of qualified
experts whose particular field of expertise could be required
in an investigation of alleged use of chemical weapons and
constantly keep this list updated. This list shall be
communicated, in writing, to each State Party not later than 30
days after entry into force of this Convention and after each
change to the list. Any qualified expert included in this list
shall be regarded as designated unless a State Party, not later
than 30 days after its receipt of the list, declares its non-
acceptance in writing.
8. The Director-General shall select the leader and members
of an inspection team from the inspectors and inspection
assistants already designated for challenge inspections taking
into account the circumstances and specific nature of a
particular request. In addition, members of the inspection team
may be selected from the list of qualified experts when, in the
view of the Director-General, expertise not available among
inspectors already designated is required for the proper
conduct of a particular investigation.
9. When briefing the inspection team, the Director-General
shall include any additional information provided by the
requesting State Party, or any other sources, to ensure that
the inspection can be carried out in the most effective and
expedient manner.
Dispatch of inspection team
10. Immediately upon the receipt of a request for an
investigation of alleged use of chemical weapons the Director-
General shall, through contacts with the relevant States
Parties, request and confirm arrangements for the safe
reception of the team.
11. The Director-General shall dispatch the team at the
earliest opportunity, taking into account the safety of the
team.
12. If the inspection team has not been dispatched within
24 hours from the receipt of the request, the Director-General
shall inform the Executive Council and the States Parties
concerned about the reasons for the delay.
Briefings
13. The inspection team shall have the right to be briefed
by representatives of the inspected State Party upon arrival
and at any time during the inspection.
14. Before the commencement of the inspection the
inspection team shall prepare an inspection plan to serve,
inter alia, as a basis for logistic and safety arrangements.
The inspection plan shall be updated as need arises.
C. Conduct of inspections
Access
15. The inspection team shall have the right of access to
any and all areas which could be affected by the alleged use of
chemical weapons. It shall also have the right of access to
hospitals, refugee camps and other locations it deems relevant
to the effective investigation of the alleged use of chemical
weapons. For such access, the inspection team shall consult
with the inspected State Party.
Sampling
16. The inspection team shall have the right to collect
samples of types, and in quantities it considers necessary. If
the inspection team deems it necessary, and if so requested by
it, the inspected State Party shall assist in the collection of
samples under the supervision of inspectors or inspection
assistants. The inspected State Party shall also permit and
cooperate in the collection of appropriate control samples from
areas neighboring the site of the alleged use and from other
areas as requested by the inspection team.
17. Samples of importance in the investigation of alleged
use include toxic chemicals, munitions and devices, remnants of
munitions and devices, environmental samples (air, soil,
vegetation, water, snow, etc.) and biomedical samples from
human or animal sources (blood, urine, excreta, tissue etc.).
18. If duplicate samples cannot be taken and the analysis
is performed at off-site laboratories, any remaining sample
shall, if so requested, be returned to the inspected State
Party after the completion of the analysis.
Extension of inspection site
19. If the inspection team during an inspection deems it
necessary to extend the investigation into a neighboring State
Party, the Director-General shall notify that State Party about
the need for access to its territory and request and confirm
arrangements for the safe reception of the team.
Extension of inspection duration
20. If the inspection team deems that safe access to a
specific area relevant to the investigation is not possible,
the requesting State Party shall be informed immediately. If
necessary, the period of inspection shall be extended until
safe access can be provided and the inspection team will have
concluded its mission.
Interviews
21. The inspection team shall have the right to interview
and examine persons who may have been affected by the alleged
use of chemical weapons. It shall also have the right to
interview eyewitnesses of the alleged use of chemical weapons
and medical personnel, and other persons who have treated or
have come into contact with persons who may have been affected
by the alleged use of chemical weapons. The inspection team
shall have access to medical histories, if available, and be
permitted to participate in autopsies, as appropriate, of
persons who may have been affected by the alleged use of
chemical weapons.
D. Reports
Procedures
22. The inspection team shall, not later than 24 hours
after its arrival on the territory of the inspected State
Party, send a situation report to the Director-General. It
shall further throughout the investigation send progress
reports as necessary.
23. The inspection team shall, not later than 72 hours
after its return to its primary work location, submit a
preliminary report to the Director-General. The final report
shall be submitted to the Director-General not later than 30
days after its return to its primary work location. The
Director-General shall promptly transmit the preliminary and
final reports to the Executive Council and to all States
Parties.
Contents
24. The situation report shall indicate any urgent need for
assistance and any other relevant information. The progress
reports shall indicate any further need for assistance that
might be identified during the course of the investigation.
25. The final report shall summarize the factual findings
of the inspection, particularly with regard to the alleged use
cited in the request. In addition, a report of an investigation
of an alleged use shall include a description of the
investigation process, tracing its various stages, with special
reference to:
(a) The locations and time of sampling and on-site
analyses; and
(b) Supporting evidence, such as the records of
interviews, the results of medical examinations and
scientific analyses, and the documents examined by the
inspection team.
26. If the inspection team collects through, inter alia,
identification of any impurities or other substances during
laboratory analysis of samples taken, any information in the
course of its investigation that might serve to identify the
origin of any chemical weapons used, that information shall be
included in the report.
E. States not party to this convention
27. In the case of alleged use of chemical weapons
involving a State not Party to this Convention or in territory
not controlled by a State Party, the Organization shall closely
cooperate with the Secretary-General of the United Nations. If
so requested, the Organization shall put its resources at the
disposal of the Secretary-General of the United Nations.
ANNEX ON THE PROTECTION OF CONFIDENTIAL INFORMATION (``CONFIDENTIALITY
ANNEX'')
A. GENERAL PRINCIPLES FOR THE HANDLING OF CONFIDENTIAL INFORMATION
1. The obligation to protect confidential information shall
pertain to the verification of both civil and military
activities and facilities. Pursuant to the general obligations
set forth in Article VIII, the Organization shall:
(a) Require only the minimum amount of information
and data necessary for the timely and efficient
carrying out of its responsibilities under this
Convention;
(b) Take the necessary measures to ensure that
inspectors and other staff members of the Technical
Secretariat meet the highest standards of efficiency,
competence, and integrity;
(c) Develop agreements and regulations to implement
the provisions of this Convention and shall specify as
precisely as possible the information to which the
Organization shall be given access by a State Party.
2. The Director-General shall have the primary
responsibility for ensuring the protection of confidential
information. The Director-General shall establish a stringent
regime governing the handling of confidential information by
the Technical Secretariat, and in doing so, shall observe the
following guidelines:
(a) Information shall be considered confidential if:
(i) It is so designated by the State Party
from which the information was obtained and to
which the information refers; or
(ii) In the judgement of the Director-
General, its unauthorized disclosure could
reasonably be expected to cause damage to the
State Party to which it refers or to the
mechanisms for implementation of this
Convention;
(b) All data and documents obtained by the Technical
Secretariat shall be evaluated by the appropriate unit
of the Technical Secretariat in order to establish
whether they contain confidential information. Data
required by States Parties to be assured of the
continued compliance with this Convention by other
States Parties shall be routinely provided to them.
Such data shall encompass:
(i) The initial and annual reports and
declarations provided by States Parties under
Articles III, IV, V and VI, in accordance with
the provisions set forth in the Verification
Annex;
(ii) General reports on the results and
effectiveness of verification activities; and
(iii) Information to be supplied to all
States Parties in accordance with the
provisions of this Convention;
(c) No information obtained by the Organization in
connection with the implementation of this Convention
shall be published or otherwise released, except, as
follows:
(i) General information on the implementation
of this Convention may be compiled and released
publicly in accordance with the decisions of
the Conference or the Executive Council;
(ii) Any information may be released with the
express consent of the State Party to which the
information refers;
(iii) Information classified as confidential
shall be released by the Organization only
through procedures which ensure that the
release of information only occurs in strict
conformity with the needs of this Convention.
Such procedures shall be considered and
approved by the Conference pursuant to Article
VIII, paragraph 21 (i);
(d) The level of sensitivity of confidential data or
documents shall be established, based on criteria to be
applied uniformly in order to ensure their appropriate
handling and protection. For this purpose, a
classification system shall be introduced, which by
taking account of relevant work undertaken in the
preparation of this Convention shall provide for clear
criteria ensuring the inclusion of information into
appropriate categories of confidentiality and the
justified durability of the confidential nature of
information. While providing for the necessary
flexibility in its implementation the classification
system shall protect the rights of States Parties
providing confidential information. A classification
system shall be considered and approved by the
Conference pursuant to Article VIII, paragraph 21 (i);
(e) Confidential information shall be stored securely
at the premises of the Organization. Some data or
documents may also be stored with the National
Authority of a State Party. Sensitive information,
including, inter alia, photographs, plans and other
documents required only for the inspection of a
specific facility may be kept under lock and key at
this facility;
(f) To the greatest extent consistent with the
effective implementation of the verification provisions
of this Convention, information shall be handled and
stored by the Technical Secretariat in a form that
precludes direct identification of the facility to
which it pertains;
(g) The amount of confidential information removed
from a facility shall be kept to the minimum necessary
for the timely and effective implementation of the
verification provisions of this Convention; and
(h) Access to confidential information shall be
regulated in accordance with its classification. The
dissemination of confidential information within the
Organization shall be strictly on a need-to-know basis.
3. The Director-General shall report annually to the
Conference on the implementation of the regime governing the
handling of confidential information by the Technical
Secretariat.
4. Each State Party shall treat information which it
receives from the Organization in accordance with the level of
confidentiality established for that information. Upon request,
a State Party shall provide details on the handling of
information provided to it by the Organization.
B. EMPLOYMENT AND CONDUCT OF PERSONNEL IN THE TECHNICAL SECRETARIAT
5. Conditions of staff employment shall be such as to
ensure that access to and handling of confidential information
shall be in conformity with the procedures established by the
Director-General in accordance with Section A.
6. Each position in the Technical Secretariat shall be
governed by a formal position description that specifies the
scope of access to confidential information, if any, needed in
that position.
7. The Director-General, the inspectors and the other
members of the staff shall not disclose even after termination
of their functions to any unauthorized persons any confidential
information coming to their knowledge in the performance of
their official duties. They shall not communicate to any State,
organization or person outside the Technical Secretariat any
information to which they have access in connection with their
activities in relation to any State Party.
8. In the discharge of their functions inspectors shall
only request the information and data which are necessary to
fulfil their mandate. They shall not make any records of
information collected incidentally and not related to
verification of compliance with this Convention.
9. The staff shall enter into individual secrecy agreements
with the Technical Secretariat covering their period of
employment and a period of five years after it is terminated.
10. In order to avoid improper disclosures, inspectors and
staff members shall be appropriately advised and reminded about
security considerations and of the possible penalties that they
would incur in the event of improper disclosure.
11. Not less than 30 days before an employee is given
clearance for access to confidential information that refers to
activities on the territory or in any other place under the
jurisdiction or control of a State Party, the State Party
concerned shall be notified of the proposed clearance. For
inspectors the notification of a proposed designation shall
fulfil this requirement.
12. In evaluating the performance of inspectors and any
other employees of the Technical Secretariat, specific
attention shall be given to the employee's record regarding
protection of confidential information.
C. MEASURES TO PROTECT SENSITIVE INSTALLATIONS AND PREVENT DISCLOSURE
OF CONFIDENTIAL DATA IN THE COURSE OF ON-SITE VERIFICATION ACTIVITIES
13. States Parties may take such measures as they deem
necessary to protect confidentiality, provided that they fulfil
their obligations to demonstrate compliance in accordance with
the relevant Articles and the Verification Annex. When
receiving an inspection, the State Party may indicate to the
inspection team the equipment, documentation or areas that it
considers sensitive and not related to the purpose of the
inspection.
14. Inspection teams shall be guided by the principle of
conducting on-site inspections in the least intrusive manner
possible consistent with the effective and timely
accomplishment of their mission. They shall take into
consideration proposals which may be made by the State Party
receiving the inspection, at whatever stage of the inspection,
to ensure that sensitive equipment or information, not related
to chemical weapons, is protected.
15. Inspection teams shall strictly abide by the provisions
set forth in the relevant Articles and Annexes governing the
conduct of inspections. They shall fully respect the procedures
designed to protect sensitive installations and to prevent the
disclosure of confidential data.
16. In the elaboration of arrangements and facility
agreements, due regard shall be paid to the requirement of
protecting confidential information. Agreements on inspection
procedures for individual facilities shall also include
specific and detailed arrangements with regard to the
determination of those areas of the facility to which
inspectors are granted access, the storage of confidential
information on-site, the scope of the inspection effort in
agreed areas, the taking of samples and their analysis, the
access to records and the use of instruments and continuous
monitoring equipment.
17. The report to be prepared after each inspection shall
only contain facts relevant to compliance with this Convention.
The report shall be handled in accordance with the regulations
established by the Organization governing the handling of
confidential information. If necessary, the information
contained in the report shall be processed into less sensitive
forms before it is transmitted outside the Technical
Secretariat and the inspected State Party.
D. PROCEDURES IN CASE OF BREACHES OR ALLEGED BREACHES OF
CONFIDENTIALITY
18. The Director-General shall establish necessary
procedures to be followed in case of breaches or alleged
breaches of confidentiality, taking into account
recommendations to be considered and approved by the Conference
pursuant to Article VIII, paragraph 21 (i).
19. The Director-General shall oversee the implementation
of individual secrecy agreements. The Director-General shall
promptly initiate an investigation if, in his judgement, there
is sufficient indication that obligations concerning the
protection of confidential information have been violated. The
Director-General shall also promptly initiate an investigation
if an allegation concerning a breach of confidentiality is made
by a State Party.
20. The Director-General shall impose appropriate punitive
and disciplinary measures on staff members who have violated
their obligations to protect confidential information. In cases
of serious breaches, the immunity from jurisdiction may be
waived by the Director-General.
21. States Parties shall, to the extent possible, cooperate
and support the Director-General in investigating any breach or
alleged breach of confidentiality and in taking appropriate
action in case a breach has been established.
22. The Organization shall not be held liable for any
breach of confidentiality committed by members of the Technical
Secretariat.
23. For breaches involving both a State Party and the
Organization, a ``Commission for the settlement of disputes
related to confidentiality'', set up as a subsidiary organ of
the Conference, shall consider the case. This Commission shall
be appointed by the Conference. Rules governing its composition
and operating procedures shall be adopted by the Conference at
its first session.
OTHER DOCUMENTS ASSOCIATED WITH THE CONVENTION
RESOLUTION ESTABLISHING THE PREPARATORY COMMISSION FOR THE ORGANIZATION
FOR THE PROHIBITION OF CHEMICAL WEAPONS
The States signatories of the Convention on the
Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on Their Destruction, adopted by the
Conference on Disarmament At Geneva on 3 September 1992,
Having decided to take all necessary measures to ensure
the rapid and effective establishment of the future
Organization for the Prohibition of Chemical Weapons.
Having decided to this end to establish a Preparatory
Commission.
1. Approve the Text on the Establishment of a Preparatory
Commission, as annexed to the present resolution;
2. Request the Secretary-General, in accordance with
paragraph 5 of resolution A/RES/47/39, adopted by the General
Assembly on 30 November 1992, on the Convention on the
Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on Their Destruction, to provide the
services required to initiate the work of the Preparatory
Commission for the Organization for the Prohibition of Chemical
Weapons.
TEXT ON THE ESTABLISHMENT OF A PREPARATORY COMMISSION
1. There is hereby established the Preparatory Commission
for the Organization for the Prohibition of Chemical Weapons
(hereinafter referred to as ``the Commission'') for the purpose
of carrying out the necessary preparations for the effective
implementation of the Convention on the Prohibition of the
Development, Production, Stockpiling and Use of Chemical
Weapons and on their Destruction, and for preparing for the
first session of the Conference of the States Parties to that
Convention.
2. The Secretary-General of the United Nations shall
convene the Commission for its first session at The Hague,
Kingdom of the Netherlands, not later than 30 days after the
Convention has been signed by 50 States.
3. The Seat of the Commission shall be The Hague, Kingdom
of the Netherlands.
4. The Commission shall be composed of all States which
sign the Convention. Each signatory State shall have one
representative in the Commission, who may be accompanied by
alternates and advisers.
5. The expenses of the Commission, including those of the
provisional Technical Secretariat, shall be met by the States
signatories to the Convention, participating in the Commission,
in accordance with the United Nations scale of assessment,
adjusted to take into account differences between the United
Nations membership and the participation of States signatories
in the Commission and timing of signature. The Commission and
the provisional Technical Secretariat may also benefit from
voluntary contributions.
6. All decisions of the Commission should be taken by
consensus. If, notwithstanding the efforts of representatives
to achieve consensus, an issue comes up for voting, the
Chairman of the Commission shall defer the vote for 24 hours
and during this period of deferment shall make every effort to
facilitate achievement of consensus, and shall report to the
Commission before the end of the period. If consensus is not
possible at the end of 24 hours, the Commission shall take
decision on questions of procedure by a simple majority of the
members present and voting. Decisions on matters of substance
shall be taken by two-thirds majority of the members present
and voting. When the issue arises as to whether the question is
one of substance or not, that question shall be treated as a
matter of substance unless otherwise decided by the Commission
by the majority required for decisions on matters of substance.
7. The Commission shall have such legal capacity as
necessary for the exercise of its functions and the fulfillment
of its purposes.
8. The Commission shall:
(a) Elect its Chairman and other officers, adopt its
rules of procedure, meet as often as necessary and
establish such committees as it deems useful;
(b) Appoint its Executive Secretary;
(c) Establish a provisional Technical Secretariat to
assist the Commission in its activity and to exercise
such functions as the Commission may determine, and
appoint the necessary staff in charge of preparatory
work concerning the main activities to be carried out
by the Technical Secretariat to be established by the
Convention. Only nationals of signatory States shall be
appointed to the provisional Technical Secretariat;
(d) Establish administrative and financial
regulations in respect of its own expenditure and
accounts.
9. The Commission shall make arrangements for the first
session of the Conference of the States Parties, including the
preparation of a draft agenda and draft rules of procedure.
10. The Commission shall undertake, inter alia, the
following tasks concerning the organization and work of the
Technical Secretariat and requiring immediate attention after
entry into force of the Convention:
(a) Elaboration of a detailed staffing pattern of the
Technical Secretariat, including decision-making flow
charts;
(b) Assessments of personnel requirements;
(c) Staff rules for recruitment and service
conditions;
(d) Recruitment and training of technical personnel
and support staff;
(e) Organization of office and administrative
services;
(f) Preparation of administrative and financial
regulations;
(g) Purchase and standardization of equipment.
11. The Commission shall undertake, inter alia, the
following tasks on matters of the organization requiring
immediate attention after the entry into force of the
Convention:
(a) Preparation of programme of work and budget of
the first year of activities of the Organization;
(b) Preparation of detailed budgetary provisions for
the Organization taking into account that the budget
shall comprise two separate chapters, one relating to
administrative and other costs, and one relating to
verification costs;
(c) Preparation of the scale of financial
contributions to the Organization;
(d) Preparation of administrative and financial
regulations for the Organization providing for inter
alia:
(i) Proper financial control and accounting
by the Organization;
(ii) Preparation and approval of periodic
financial statements by the Organization;
(iii) Independent audit of the Organization's
financial statements;
(iv) Annual presentation of the audited
financial statements to a regular session of
the Conference of the States Parties for formal
acceptance;
(e) Development of arrangements to facilitate the
election of 20 members for a term of one year for the
first election of the Executive Council.
12. The Commission shall develop, inter alia, the following
draft agreements, provisions and guidelines for consideration
and approval by the Conference of the States Parties pursuant
to Article VIII, paragraph 21 (i) of the Convention:
(a) Guidelines on detailed procedures for
verification and for the conduct of inspections, in
accordance with, inter alia, Part II, paragraph 42, of
the Verification Annex;
(b) Lists of items to be stockpiled for emergency and
humanitarian assistance in accordance with Article
VIII, paragraph 39 (b);
(c) Agreements between the Organization and the
States Parties in accordance with Article VIII,
paragraph 50;
(d) Procedures for the provision of information by
States Parties on their programmes related to
protective purposes, in accordance with Article X,
paragraph 4;
(e) A list of approved equipment, in accordance with
Part II, paragraph 27, of the Verification Annex;
(f) Procedures for the inspection of equipment, in
accordance with Part II, paragraph 29, of the
Verification Annex;
(g) Procedures concerning the implementation of
safety requirements for activities of inspectors and
inspection assistants, in accordance with Part II,
paragraph 43, of the Verification Annex;
(h) Procedures for inclusion in the inspection manual
concerning the security, integrity and preservation of
samples and for ensuring the protection of the
confidentiality of samples transferred for analysis
off-site, in accordance with Part II, paragraph 56, of
the Verification Annex;
(i) Models for facility agreements in accordance with
Part III, paragraph 8, of the Verification Annex;
(j) Appropriate detailed procedures to implement Part
III, paragraphs 11 and 12 of the Verification Annex, in
accordance with paragraph 13 of that Part;
(k) Deadlines for submission of the information
specified in Part IV (A), paragraphs 30 to 32 of the
Verification Annex, in accordance with paragraph 34 of
that Part;
(l) Recommendations for determining the frequency of
systematic on-site inspection of storage facilities, in
accordance with Part IV (A), paragraph 44, of the
Verification Annex;
(m) Recommendations for guidelines for transitional
verification arrangements, in accordance with Part IV
(A), paragraph 51, of the Verification Annex;
(n) Guidelines to determine the usability of chemical
weapons produced between 1925 and 1946, in accordance
with Part IV (B), paragraph 5, of the Verification
Annex;
(o) Guidelines for determining the frequency of
systematic on-site inspections of chemical weapons
production facilities, in accordance with Part V,
paragraph 54, of the Verification Annex;
(p) Criteria for toxicity, corrosiveness and, if
applicable, other technical factors, in accordance with
Part V, paragraph 71 (b), of the Verification Annex;
(q) Guidelines to assess the risk to the object and
purpose of the Convention posed by the relevant
chemicals, the characteristics of the facility and the
nature of the activities carried out there, in
accordance with Part VI, paragraph 23, of the
Verification Annex;
(r) Models for facility agreements covering detailed
inspection procedures, in accordance with Part VI,
paragraph 27, of the Verification Annex;
(s) Guidelines to assess the risk to the object and
purpose of the Convention posed by the quantities of
chemicals produced, the characteristics of the facility
and the nature of the activities carried out there, in
accordance with Part VI, paragraph 30, of the
Verification Annex;
(t) Guidelines for provisions regarding scheduled
chemicals in low concentrations, including in mixtures,
in accordance with Part VII, paragraph 5, and Part
VIII, paragraph 5, of the Verification Annex;
(u) Guidelines for procedures on the release of
classified information by the Organization, in
accordance with paragraph 2 (c) (iii) of the
Confidentiality Annex;
(v) A classification system for levels of sensitivity
of confidential data and documents, taking into account
relevant work undertaken in the preparation of the
Convention, in accordance with paragraph 2 (d) of the
Confidentiality Annex;
(w) Recommendations for procedures to be followed in
case of breaches or alleged breaches of
confidentiality, in accordance with paragraph 18 of the
Confidentiality Annex.
13. Pursuant to Article VIII, paragraph 50, of the
Convention, the Commission shall develop the Headquarters
Agreement with the Host Country, based, inter alia, on the
privileges, immunities and practical arrangements as specified
in Annex 2 to this text.
14. The Commission shall:
(a) Facilitate the exchange of information between
signatory States concerning legal and administrative
measures for the implementation of the Convention and,
if requested, give advice to signatory States on these
matters;
(b) Prepare such studies, reports and records as it
deems necessary.
15. The Commission shall prepare a final report on all
matters within its mandate for the first session of the
Conference of the States Parties and the first meeting of the
Executive Council.
16. The property, functions and recommendations of the
Commission shall be transferred to the Organization at the
first session of the Conference of the States Parties. The
Commission shall make recommendations to the Conference of the
States Parties on this matter.
17. The Commission shall remain in existence until the
conclusion of the first session of the Conference of the States
Parties.
18. The Host Country undertakes to accord the Commission,
its staff, as well as the delegates of signatory States such
legal status, privileges and immunities as are necessary for
the independent exercise of their functions in connection with
the Commission and the fulfillment of its object and purpose,
as outlined in Annex 1 to this text.
Annex 1
PRIVILEGES, IMMUNITIES AND PRACTICAL ARRANGEMENTS IN CONNECTION WITH
THE HOSTING OF THE PREPARATORY COMMISSION
1. The Government of the Netherlands is prepared to grant
to the delegates to the Preparatory Commission, who have been
notified as such by the sending State, and who reside in The
Hague, privileges and immunities similar to those granted by
the Government of the Netherlands to diplomats of comparable
rank of diplomatic missions accredited to the Netherlands.
2. The Government of the Netherlands is prepared to apply
Article V of the Convention on the Privileges and Immunities of
the Specialized Agencies of 21 November 1947 to nonresiding
delegates to the Preparatory Commission while exercising their
function and during their journeys to and from the place of
meeting.
3. The Government of the Netherlands is prepared to grant
to the Executive Secretary and staff members of the Preparatory
Commission privileges and immunities similar to those which the
Government of the Netherlands has undertaken to grant to the
Director-General and staff members of the Organization for the
Prohibition of Chemical Weapons, as set out under Annex 3,
``Privileges and Immunities'', points 1, 2, and 3, ``Social
Security'', point 13, and ``Employment'', points 14 and 15.
4. It is understood that the above will be elaborated in an
agreement to be concluded with the Government of the
Netherlands.
5. The practical arrangements for the hosting for the
Preparatory Commission shall be based on the information
submitted and commitments undertaken by the Netherlands and by
the City of The Hague as contained in Annex 3 on the
Netherlands bid, under ``Building and Equipment''.
Annex 2
privileges, immunities and practical arrangements to be laid down in
the headquarters agreement
1. The Headquarters Agreement between the Organization and
the Netherlands, where the seat of the Organization is located,
shall be based on the information submitted and commitments
undertaken by the Netherlands and by the City of The Hague as
contained in Annex 3 on the Netherlands bid.
2. In order to ensure the effective functioning of the
Organization, the privileges and immunities to be laid down in
the Headquarters Agreement shall be in conformity with the
regime of the Convention on the Privileges and Immunities of
the Specialized Agencies of 21 November 1947 (United Nations
General Assembly Resolution 179/II).
3. In order to ensure the effective functioning of the
Organization, the Headquarters Agreement shall also include
provisions for:
3.1 the granting to Heads of Delegations to the
Organization of ambassadorial rank the title of
Permanent Representative and the privileges and
immunities to which Ambassadors to the Netherlands are
entitled;
3.2 the establishment of a tax-free commissary for
the officials of the Organization entitled to duty free
privileges;
3.3 the exemption from tax on or in respect of
salaries and emoluments paid by the Organization; the
Host Country shall not take into account the salaries
and emoluments thus exempted when assessing the amount
of tax to be applied to income from other sources.
Annex 3
information submitted and commitments undertaken by the netherlands and
by the city of the hague
The following information is given and commitments are
undertaken by the Netherlands and by the City of The Hague with
respect to arrangements for the hosting of the Preparatory
Commission as well as for the Headquarters Agreement. These are
reflected in:
The Annex to Paper No. 1 of 28 April 1992 of the
``Friend of the Chair on the Seat of the
Organization'';
The Bidbook of 18 May 1992 presented by the
Netherlands;
The statement of 2 June 1992, made by Mr. Martini,
Acting Burgomaster of The Hague, to the Ad Hoc
Committee on Chemical Weapons;
The statement of 2 June 1992 made by Mr. M. van Zelm,
Programme Director of the Prins Maurits Laboratory, to
the Ad Hoc Committee on Chemical Weapons.
These documents are filed with the Secretariat of the
Conference on Disarmament in Geneva.
Other aspects may be included in the Headquarters Agreement
by mutual agreement.
Privileges and Immunities
1. Full diplomatic privileges will be granted to those
staff members of the Organization and their dependents who
qualify under the relevant provisions of the Agreement.
Pursuant to Annex 1, the Netherlands is prepared to extend
diplomatic privileges to personnel with ranks comparable to P-5
and above in conformity with the regime of the Convention on
the Privileges and Immunities of the Specialized Agencies of 21
November 1947 (United Nations General Assembly Resolution 179/
II).
2. Other staff members will enjoy:
(a) immunity from legal proceedings of any kind with
respect to words spoken or written and all acts
performed by them in their official capacity;
(b) in any event, immunity shall not extend to a
civil action by a third party for damage arising from
an accident caused by a motor vehicle belonging to,
driven by or operated on behalf of a staff member or in
respect of a traffic offense involving such a vehicle;
(c) inviolability of all their official papers and
documents;
(d) immunity from inspection of official baggage;
(e) exemption from Netherlands income tax on salaries
and emoluments paid to them by the Organization.
Moreover, staff members who do not have the Dutch
nationality will:
(f) enjoy exemption with respect to themselves and
members of their families who are part of their
households from all measures restricting entry and
alien registration. Any visas which may be required
shall be issued without charge as promptly as possible;
(g) be given the same repatriation facilities in the
time of international crisis as officials of diplomatic
missions, together with members of their families who
form part of their households;
(h) not require a work permit for their official
duties with the Organization;
(i) in accordance with the regulations in force, have
relief from import duties and taxes, except payments
for services, in respect of their furniture and
personal effects and the right to export furniture and
personal effects with relief from duty on termination
of their duties in the Netherlands. Personal effects
may include a reasonable number of cars that have been
in use in the household and are older than six months.
3. In addition, persons who have lived outside the
Netherlands for at least 12 months before taking up a position
with the Organization will be allowed to import one motor
vehicle tax-free. The vehicle should be imported within 12
months after they take up their position and can be sold tax-
free after 12 months.
4. Pursuant to Annex 2, the Netherlands is furthermore
prepared to grant to the Heads of Delegation with ambassadorial
rank, accredited to the Organization for the Prohibition of
Chemical Weapons, the title of Permanent Representatives and
the privileges and immunities to which Ambassadors to the
Netherlands are entitled.
Building and equipment
5. An office building of 3,300 square meters will be
supplied free of charge during the preparatory phase (maximum
of five years). The building is located at the center of The
Hague near the Peace Palace and several embassies. The
Netherlands Congress Center is 1 km away. The modern office
building was built in 1986 and consists of 3,300 square meters
of office space divided over five floors. Office space can be
made available immediately as soon as the Organization begins
working in The Hague. The building offers sufficient
flexibility to allow the Organization to grow in stages up to a
maximum of 200 people. The Hague and the Netherlands will pay
for the rent of the office space, parking places for the
Organization, maintenance costs of the building and the
installations energy costs (heating, cooling, electricity,
water) and turnkey costs (carpeting, partitioning) during the
preparatory phase.
6. Before the full implementation phase, office space with
a maximum of 18,000 square meters is foreseen to be made
available for the Organization in a new purpose-built office
building, to be known as the ``Peace Tower''. Construction can
be started as soon as the Organization can specify the required
volume and further details. The building is expected to be
completed two and a half years later. The Tower will be
situated in the city center business district next to Central
Station.
For a period of 3 years during the full implementation
phase, The Hague and the Netherlands will pay for the rent of
the office space, 110 parking places for the Organization
inside the building, maintenance costs of the building and the
installations, energy costs (heating, cooling, electricity,
water) and turnkey costs (carpeting, partitioning).
The building is flexible enough to allow space to be made
available to the Organization in proportion to the number of
staff, up to a maximum of 18,000 square meters. After the
period in which the Netherlands Government will pay for the
office space as described above, office space can be leased by
the Organization at a guaranteed price of US$ 250 per square
meter (indexed on the basis of the 1992 price level, basic
rent).
If required expansion needs of the Organization are known
before the end of 1993, the building can be expanded to a
maximum of 22,000 square meters. This expansion can be leased
by the Organization at a guaranteed price of US$ 250 per square
meter (indexed on the basis of 1992 price levels, basic rent).
7. When needed, a conference room for approximately 170
delegations will be made available, free of charge, during the
maximum eight year period of the Netherlands bid at the nearby
Peace Palace or Netherlands Congress Center.
8. Subject to the promise that all office supplies, service
contracts and other office materials for which the Organization
will pay, shall be purchased at the normal going rates from a
supplier designated by The Hague, the Netherlands offer during
the preparatory phase (maximum of five years) includes:
Providing all necessary office furniture according to
official European standards, free of charge;
Providing all the reasonably necessary office
equipment, free of charge;
During the preparatory phase (maximum of five years) the
Netherlands offer also includes:
Providing a fully integrated digital telephone
switchboard, telephones on every desk and 10 fax
machines free of charge.
9. After the preparatory phase during a period of three
years office furniture (according to official European
standards) and reasonably necessary office equipment will be
supplied free of charge on a one-time basis, provided that all
office supplies, service contracts and other office materials
for which the Organization will pay, shall be purchased at the
normal going rates from a supplier designated by The Hague.
Laboratory/training
10. The Prins Maurits Laboratory (PML) of the Netherlands
Organization for Applied Scientific Research (TNO), a fully
independent not-for-profit research organization, will grant
the Organization access to its database with analytical
chemical data, free of charge. This database contains
spectrometric and chromatographic data of a large number of
compounds relevant to the Convention.
11. PML is also prepared to provide a technical training
programme for 100-150 candidate inspectors of the future
Organization drawn from developing countries mainly. The
training programme will be free of charge for the participants.
12. Finally PML, if needed in cooperation with other TNO
institutes, could carry out a number of technical functions of
the Organization, such as analyses of samples, development of
analytical chemical methods, synthesis of reference compounds,
calibration and development of verification equipment, advice
on and development of detection and protection equipment,
sampling equipment, seals and markers, etc., at a price
determined by the integral costs of its activities.
Social security
13. If the Organization establishes its own social security
system with comparable coverage to Dutch schemes, the
Netherlands Government will exempt the Organization, its
Director and staff members/personnel from compulsory insurance
under national social security schemes. The exemption rules
will be laid down in the Headquarters Agreement. For persons
who are not exempt, compulsory insurance schemes will apply and
the Organization will be responsible for paying contributions.
Employment
14. Non-Dutch employees of international organizations in
the Netherlands who do not carry diplomatic status, will be--as
a matter of routine--granted work and residence permits for the
duration of their employment in the Netherlands.
15. Family members of persons working at the Organization
who have the nationality of one of the member States of the
European Community may take up employment in the Netherlands.
Members of the family who do not have the nationality of one of
the member States of the European Community may take up
employment subject to the requirements of the labor market.
General conditions relating to the Netherlands bid
16. The Dutch bid applies if the Organization is to remain
in The Hague throughout its existence.
17. Property, furniture, equipment and other items that are
made available will remain the property of the supplier and/or
the Netherlands.
VIII. MAJORITY VIEWS
Page
I. Background.....................................................163
A. Historical background................................... 164
B. Recent developments..................................... 165
II. The Chemical Weapons Threat....................................167
A. Description............................................. 167
B. Delivery................................................ 167
C. Destructive effects..................................... 168
D. Utility................................................. 168
E. Proliferant countries................................... 169
F. Implications of proliferation........................... 170
G. Purpose and provisions of the Chemical Weapons
Convention............................................... 171
III. Issues Considered in Resolution of Ratification................173
A. Verification and implementation issues.................. 173
1. Verifiability....................................... 173
2. Universality and effectiveness...................... 179
3. Costs............................................... 182
4. Enforcement/sanctions............................... 184
5. Destruction of stockpiles........................... 185
6. ``Rogue'' inspectors............................... 190
7. Chemical Weapons Convention funding................. 191
8. Chemical Weapons Convention costs................... 192
9. The Chemical Weapons Convention preparatory
commission........................................... 192
10. The Organization for the Prohibition of Chemical
Weapons.............................................. 194
B. Security and Military Implications...................... 194
1. Retaliatory capability.............................. 194
2. Deterrence.......................................... 196
3. Defenses............................................ 197
4. Riot control agents................................. 198
5. Russia and cheating................................. 200
6. Non-lethal weapons development...................... 207
7. Protecting national security information............ 208
8. The impact on anti-terrorism efforts................ 209
C. Commercial considerations............................... 211
1. Constitutional issues............................... 211
2. U.S. industry and the CWC........................... 214
3. Repercussions on U.S. industry if the U.S. does not
ratify the CWC....................................... 219
D. Popular misconceptions of the CWC....................... 220
IV. Conclusions....................................................224
A. Bipartisan support...................................... 224
B. Summary................................................. 225
C. Continuing concerns..................................... 227
D. Judgment................................................ 228
V. Appendices.....................................................229
Letter of support from George Bush......................... 229
Letters of support from the chemical industry:
1. The Chemical Manufacturers Association (CMA)........ 230
2. The Synthetic Organic Chemical Manufacturers
Association (SOCMA).................................. 235
3. The Pharmaceutical Research and Manufacturers of
America (PhRMA)...................................... 235
4. The Biotechnology Industry Organization (BIO)....... 236
5. The American Chemical Society (ACS)................. 237
6. 53 senior chemical industry executives.............. 238
1. Background
Several developments in recent years have led to an
increased concern over the proliferation of weapons of mass
destruction. Economic and technological development around the
world has led to a greater diffusion of the technology needed
to produce such weapons. Meanwhile, the end of the cold war has
been followed by the reemergence of regional conflicts, in
which weapons of mass destruction are most likely to be used if
available. The breakup of the Soviet Union has spawned new
states with advanced unconventional weapons capabilities.
Accordingly, the Clinton administration has stated repeatedly
that nonproliferation is one of the primary objectives of its
foreign policy.
Some 20 nations are now suspected of having chemical
weapons or developing a chemical weapons capability. Among
these states are Iraq, Syria, North Korea, and Libya--countries
not known for their restraint. Chemical weapons have been
termed the ``poor man's nuclear bomb'' because they can be
manufactured cheaply from chemicals that, although they are in
many cases controlled, are nevertheless available for
commercial purposes. And now, the dangers from chemical weapons
are aggravated by the production and potential proliferation of
ballistic missiles that can hurl a CW warhead hundreds of
miles. Moreover, unlike the nuclear threshold, the chemical
weapons threshold has proved all too easy to cross.
In the twentieth century, nuclear weapons have been used
but once, when they were employed to end the Pacific war.
During this same time, however, nations repeatedly have
unleashed chemical weapons to achieve their military or
political goals. Soldiers on both sides, including U.S. troops,
were gassed in World War I. Chemical weapons were used in
Ethiopia in the 1930's, in Manchuria in the 1940's, and in
Yemen in the 1960's. During the Iran/Iraq war, chemical attacks
became commonplace. Saddam Hussein dropped chemical bombs on
the Kurds in order to suppress their rebellion in 1989. As
recently as the Persian Gulf war, our own troops faced a
potential chemical weapons threat from Iraq.
It is important to note that two-thirds of the some 20
countries identified as having chemical weapons or developing a
chemical weapons capability have signed the CWC. The United
States wants those nations to ratify it as well, and ultimately
to attain universal adherence to the Convention.
The Chemical Weapons Convention represents the most far-
reaching multilateral chemical weapons regime in history. Since
it was opened for signature in January 1993, 160 countries,
including the United States, have signed the agreement, and 50,
as of April 1996, have ratified it. The Convention bans for the
first time the development, production, and possession of
chemical weapons, and reinforces the international norm against
the use of such weapons. The Convention enters into force 180
days after the 65th country has ratified it, allowing parties
time to enact implementing legislation and for the Preparatory
Commission to conclude detailed implementation procedures. As
of this writing in August 1996, more than 60 had already
ratified. President Clinton transmitted the Convention to the
U.S. Senate on November 23, 1993, for its consent to
ratification. The Convention was then referred to the Senate
Foreign Relations Committee.
A. HISTORICAL BACKGROUND
In 1925, at the Geneva Conference for the Supervision of
the International Traffic in Arms, the United States proposed a
prohibition on the export of gases for use in war and the
French proposed a ban on the use of poisonous gas in war. At
Poland's suggestion, the prohibition was extended to
bacteriological weapons. The Geneva Protocol was the result. It
bans the use in war (thus avoiding prohibiting a country's
internal use, as in the instance of Iraqi gassing of Kurds) of
chemical and biological weapons, but not the production,
stockpiling, or transfer of such weapons. The Committee on
Foreign Relations favorably reported the treaty in 1926, but
the Senate did not act on it in that period.
In the post-World War II period, there were a number of
discussions of the possibility of multilateral chemical and
biological weapons bans, but no significant progress was made
until the late 1960's. In 1969, President Nixon announced that
he would resubmit the protocol to the Senate. He reaffirmed
U.S. renunciation of first use of lethal chemical weapons, as
well as incapacitating chemicals.
In 1970, the President resubmitted the protocol with a
reservation that the United States could retaliate with
chemical weapons in the event that it was attacked by such
weapons. He also declared that the protocol would not apply to
the use in war of riot-control agents and herbicides. The
Committee on Foreign Relations disagreed with the narrow
coverage and deferred action. In 1971, the Soviets accepted the
U.S. view that a ban on biological weapons presented less
intractable problems and should not be held up awaiting
agreement in the Conference on Disarmament on a chemical
weapons ban. As a result, the Biological and Toxin Weapons
Convention was negotiated quickly, opened for signature and
submitted to the Senate in 1972. The Senate Foreign Relations
Committee deferred action pending resolution of the U.S.
commitment under the Geneva Protocol.
In 1974, the Ford administration reopened the issue with
the committee, and Dr. Fred Ikle, the Director of the Arms
Control and Disarmament Agency said that the President, while
reaffirming the scope of the Geneva Protocol, was prepared ``to
renounce as a matter of national policy: (1) first use of
herbicides in war except use, under regulations applicable to
their domestic use, for control of vegetation within U.S. bases
and installations or around their immediate defensive
perimeters; and (2) first use of riot-control agents in war
except in defensive military modes to save lives * * *.''
Moreover, Dr. Ikle testified, ``The President, under an earlier
directive still in force, must approve in advance any use of
riot-control agents and chemical herbicides in war.'' With that
and related understandings, the Senate Foreign Relations
Committee voted unanimously 2 days later to report the
Convention and the protocol favorably. Four days later, the
Senate approved the protocol and the Convention unanimously.
B. RECENT DEVELOPMENTS
In recent years, the issue of chemical weapons
proliferation has gained more immediacy as a result of a number
of allegations of chemical and biological weapons use. The
United States used riot-control agents and herbicides in
Vietnam, but denied charges it had used lethal chemicals or
biological agents. In the mid 1960's, Egypt was accused of
using chemical weapons with Soviet help in the Yemeni civil
war. North Vietnam was accused of using chemical weapons and
toxins in Laos and Cambodia. The Ethiopian government was
suspected of using chemicals against rebels in 1980. The United
States charged that the Soviets used chemical weapons and
toxins in Afghanistan.
The event which provoked the sharpest response from the
international community, and from the U.S. Congress, was Iraq's
repeated use of chemical weapons in the Iran-Iraq war, which
led to Iranian retaliation with chemical weapons, subsequently
Iraq callously used poison gas against its own Kurdish citizens
in 1988. Congress responded by passing the Pell-Helms Chemical
and Biological Weapons Control and Warfare Elimination Act,
which imposed sanctions on nations using chemical weapons and
against companies aiding the chemical weapons programs in
certain countries. President Bush vetoed the legislation in
1990, however, because it did not allow a Presidential waiver
of sanctions. The Bush administration subsequently established
controls and sanctions by Executive order, but with complete
leeway on waivers of penalties. The legislation was modified to
permit a Presidential waiver of sanctions against countries
using chemical weapons, but with a congressional right to
override the waiver specified with executive branch support,
passed again by Congress and became law in 1991.
Meanwhile, progress has been made in recent years on the
multilateral front, especially since the end of the cold war,
which has led to greater opportunities for international
cooperation on nonproliferation issues. In 1984, Vice President
Bush introduced at the Conference on Disarmament in Geneva a
draft treaty calling for a comprehensive chemical weapons ban
with extensive verification procedures. In the following years,
substantial progress was made on a number of key issues, and
there was early agreement in principle on the basic approach a
ban would take. The Reagan administration had favored very
strict ``anytime, anywhere'' verification procedures. Some
believed that this U.S. demand could scuttle prospects for
agreement, but a breakthrough came when the Soviet side did an
about face and essentially decided to accept ``anytime,
anywhere'' inspections.
The late 1980's saw a slowdown in progress on an
international chemical weapons agreement, as states debated the
extensive verification procedures proposed by the United
States. Also, many nations opposed a U.S.-Soviet formulation
whereby those two countries could keep 500 tons of chemical
weapons for at least another 8 years, pending an assessment of
states' participation in the Convention.
The experience of the gulf war, in which the United States
faced the possibility of chemical weapons attack, apparently
precipitated a change in the Bush administration's thinking on
the matter. The United States decided that it would not use
chemical weapons even if Iraq did so, but made it clear that
any Iraqi use of chemical weapons would bring an overwhelming
and devastating response. Subsequently, the executive branch
determined that the value of a chemical weapons ban outweighed
the utility of a chemical capability in the remote eventuality
that conventional forces could not adequately retaliate against
a chemical attack. Thus, the United States decided that in the
context of a multilateral convention, it would be willing to
abide by a total chemical weapons ban even if other countries
did not initially adhere to such a global ban and maintained
chemical weapons stockpiles and programs. This development led
to accelerated progress in multilateral talks.
In September 1989, the United States and Soviet Union
signed a memorandum of understanding in Jackson Hole, Wyoming,
for a Bilateral Verification Experiment and Data Exchange
Related to the Prohibition of Chemical Weapons. Known as the
Wyoming MOU, the 1989 agreement provided for activities in two
phases:
Phase I of the MOU obligated the Parties to provide
general data on their chemical weapons capabilities and
provides for a series of visits to relevant military
and civilian facilities.
Phase II of the MOU obligated the Parties to provide
detailed data on their chemical weapons capabilities
and to permit on-site inspections of relevant military
and civilian facilities to verify the accuracy of data
declarations.
The stated purpose of the Wyoming MOU when it was signed by
the U.S. and the Soviet Union in 1989 was to build confidence
in each country's commitment to banning chemical weapons
capabilities and thus facilitates completion of the
multilateral Chemical Weapons Convention.
The multilateral talks subsequently were moved forward by
another U.S.-Soviet/Russian chemical weapons agreement. In June
1990 Presidents Bush and Gorbachev signed a bilateral Agreement
on Destruction and Non-Production of Chemical Weapons and on
Measures to Facilitate the Multilateral Convention on Banning
Chemical Weapons. This agreement:
banned the production of chemical weapons agents;
required a reduction in chemical weapons stocks to
5000 tons by 2002, necessitating cuts of 83% in U.S.
stocks and 90% in Russian stocks;
provided for on-site inspections of storage,
destruction and production facilities, combined with
data declarations.
On January 13, 1993, The Convention on the Prohibition of
Development, Production, Stockpiling and Use of Chemical
Weapons and on Their Destruction, known as the Chemical Weapons
Convention, was opened for signature. The Convention went far
beyond the bilateral agreement by requiring all parties to
destroy all chemical stocks over a 10-year period.
In March 1993, the United States and Russian delegations
agreed ad referendum on detailed implementing procedures and
updated provisions to finalize the Bilateral Destruction
Agreement. Russia has yet to agree formally to these detailed
procedures and provisions, however, citing problems with the
provisions on conversion of former chemical weapons production
facilities to peaceful uses and with the costs of stockpile
destruction.
The administration maintains that the delay in reaching
final agreement on all provisions of the Bilateral Destruction
Agreement should not delay the Senate's ratification of the
Chemical Weapons Convention. All provisions of the Bilateral
Destruction Agreement are consistent with the Convention. In
effect, the bilateral agreement has fostered useful technical
exchanges and will continue to do so. Many of the provisions in
the Convention with regard to the destruction of weapons will
complement those of the bilateral agreement.
II. The Chemical Weapons Threat
A. Description
Three types of weapons are grouped under the term ``weapons
of mass destruction'': nuclear weapons, biological weapons, and
chemical weapons. They are given special attention because they
are capable of killing and injuring more people at one time
than conventional weapons can. Many chemical weapons can also
cause suffering long after they are introduced. Moreover,
weapons of mass destruction are primarily designed for use
against civilian populations, making them potentially
psychologically devastating weapons of terror.
B. Delivery
Several methods have been used for deploying and delivering
chemical weapons, which were first used extensively during
World War I. Such methods include releasing airborne gaseous
agents from ground-based tanks; artillery shells; mortar
shells; aerial spray tanks; chemical warheads for short-range
ballistic missiles; rockets; land mines; and bombs. However,
chemical weapons do not require sophisticated military delivery
systems. Indeed, a human agent can introduce chemical weapons
against a target.
The three principal types of advanced delivery vehicles are
aircraft, ballistic missiles and cruise missiles. The now
defunct Office of Technology Assessment reported in
Proliferation of Weapons of Mass Destruction, Assessing the
Risks, August 1993, that, ``though few proliferant states
have--or are likely soon to acquire--military delivery systems
capable of reaching the United States, unconventional delivery
methods could still put U.S. territory at risk. U.S. allies
abroad or deployed U.S. forces are already threatened by
shorter range systems.''
Efforts at controlling the proliferation of chemical
weapons must be accompanied by controls on the means used to
deliver such weapons. Most proliferant states have or are in
the process of developing ballistic missile and/or advanced
aircraft capabilities which could be used to deliver
unconventional weapons. While short-range delivery systems
remain a problem, the Office of Technical Assessment suggested
that, ``because advanced systems * * * are in many cases
technically more demanding, there is greater hope * * * of
imposing international controls on their further
proliferation.''
C. Destructive Effects
Chemical weapons are designed to kill or incapacitate enemy
personnel by causing such effects as skin blistering,
blindness, lung damage, choking, nervous system disruption,
paralysis, or oxygen starvation. The destructive effects of
chemical weapons are highly variable and generally less lethal
than those of other unconventional weapons. The Office of
Technology Assessment reports that, ``because they are so
dependent on weather and the degree of defensive protection,
the consequences of chemical and biological weapons are much
less predictable than those of nuclear weapons.'' Such forms of
protection as gas masks, clothing and shelters can greatly
reduce the effectiveness of chemical weapons.
In addition, the Office of Technology Assessment concluded,
``chemical weapons must be delivered in great quantities to
approach the potential lethality of nuclear and biological
weapons; against well-protected troops or civilians, they will
be less lethal than even conventional explosives.'' For
example, the ratio of deaths to injuries from chemical attacks
seems to have been low in conflicts beginning with World War I
and extending through the Iran-Iraq War.
D. Utility
While there are major political and military constraints
that may severely restrict the willingness to use chemical
weapons (indeed, cases have been relatively rare in history),
chemical weapons have several military and terroristic uses.
On a purely military level, chemical weapons can be used to
kill or injure enemy troops. They may also force the enemy to
take measures, such as troop dispersal or decontamination
efforts, or donning of protective gear, to protect against the
harmful effects of the weapons, thereby reducing the combat
effectiveness of the enemy forces. In addition, the use of
chemical weapons may overburden an enemy's medical services.
Just as chemical weapons can be used to undermine military
morale, so can they be used to terrorize entire populations.
Indeed, historical uses of such weapons have been against
civilians. The Office of Technology Assessment reported that,
``Medium- to large-scale attacks with chemical weapons (e.g.
tens of tons) on civilians may kill many more unprotected
people (e.g. thousands) than would equivalent amounts of high
explosives.'' The 1995 sarin gas attacks in Tokyo, provides an
excellent case in point. Although only small amounts of
chemicals were used and a relatively small number of persons
were killed or injured, it does not take an active imagination
to surmise the amount of damage and deaths which could have
been caused if the religious cult responsible had enlarged the
scope of their attack.
There are certain drawbacks or limitations to the use of
chemical weapons. Perhaps most importantly, a chemical attack
does not damage or destroy economic infrastructure or military
facilities, although contamination of a certain area may slow
down industrial activity temporarily. This, of course, is not
necessarily a disadvantage for a force that intends to occupy
the attacked territory, although, persistent agents may
contaminate ground that the user wishes to cross or occupy. A
chemical attack is more likely to be successful if it is used
against a static force versus a mobile force and is used in
large quantities. As mentioned earlier, chemical weapons can
also be defended against fairly easily. Last, high winds may
blow chemicals back onto the user's forces.
E. Proliferant Countries
Since the end of World War II, only three countries--the
United States, Russia and Iraq--have admitted having chemical
weapons. The Office of Technology Assessment cited eleven
countries which have been widely reported in the press as
having undeclared chemical weapons capabilities: Egypt, Iran,
Iraq, Israel, Libya, Syria, China, North Korea, Taiwan, Myanmar
(Burma) and Vietnam. Others which have been mentioned in more
than one report include Pakistan, South Korea, India, Ethiopia,
Indonesia, Chile, Afghanistan, Thailand, South Africa, Laos and
Brazil. (This list is not a list of known proliferants, but
merely of nations reported in the press as suspected of
developing chemical weapons.)
While chemical weapons are much easier to develop than
nuclear arms, many countries capable of producing chemical
weapons are not suspected of having done so. Those countries
which are suspected, however, are largely concentrated in three
regions marked by international rivalries: the Middle East,
South Asia, and East Asia. Thus, the Office of Technology
Assessment concluded: ``on the one hand, proliferation is still
limited enough to encourage hope that it can be contained. On
the other hand, it is occurring in places where political
conflicts pose a major complication to nonproliferation
efforts.''
Many of the countries widely reported as possessing some
chemical weapons capability also have Scud-range or better
ballistic missiles, including Iran, Iraq, Egypt, Syria, Libya,
Israel, North Korea, and China. In addition, all of these
nations, as well as Vietnam and Taiwan have fighter-bomber
aircraft, most with ranges of 1,000 km or more and payloads of
at least 3,000 kg. There have also been several publicly
reported programs among proliferant countries to produce cruise
missiles, which also could be used for delivering
unconventional weapons.
These proliferant countries are unlikely to threaten the
United States directly in the near future, however. According
to the Office of Technology Assessment report: ``Those emerging
missile powers that might have the intent to strike at the
United States (e.g. Iran, Iraq, North Korea, Libya) will not be
able to field long-range missiles or ICBMs over the next 10
years, and those that could develop the capability (e.g.
Israel, India, Taiwan) are not likely to have the intent. It is
therefore unlikely that any country (other than China and the
former Soviet republics that already possess intercontinental
ballistic missiles or ICBM's) would pose a direct ballistic
missile threat to the United States within the next 10 years.''
Some critics argue that the United States should not ratify
the CWC for it cannot guarantee that states it is most
concerned about will join as well. We disagree, the United
States has already decided to eliminate a large part of its
chemical arsenal. Congress has directed the Department of
Defense to destroy unitary chemical weapons stockpiles and to
plan to destroy all other chemical weapons material that is
banned by the CWC. As the United States unilaterally dismantles
its chemical weapons, it makes sense to seek the destruction of
other countries' chemical weapons as well. The Convention
imposes binding obligations on all parties to do what the
United States has already begun to do. So the Convention has
great value even if a few radical states do not join at the
outset.
Second, the United States is convinced that the answer to
the use of chemical weapons must not be retaliation in kind,
but rather a full range of defensive measures--such as
filtering systems for tanks and lightweight anti-chemical
weapons gear--coupled with a strong deterrent. The Persian Gulf
War provided a convincing, real-life demonstration that the
United States military is highly capable of deterring or
responding to a chemical weapons threat with superior
conventional military force and strategy.
The U.S. Government has long recognized that it must
maintain its defensive chemical weapons program as well as give
assistance to countries that are threatened or attacked with
chemical weapons. The CWC explicitly allows both these
measures. Many countries view these provisions as a significant
incentive to join the Convention. The United States has
developed and will continue to develop defensive, protective
measures that fully protect its military forces against all
chemical weapons threats. Regardless of CWC ratification, the
Administration and Congress have a responsibility to maintain a
robust chemical weapons defense program.
Third, by establishing a global norm against chemical
weapons, the Convention will give the United States and world
community a more effective means of pressuring radical
governments to abandon their CW capabilities. The CWC also
contains specific provisions for penalizing countries that do
not join. States remaining outside the Convention will be
denied access to trade in specified chemicals that are
important not only to CW production but also to industrial
development and growth. These states will be viewed as pariahs
and subjected to international pressure to abide by the
Convention's global norm banning CW. Over time, the United
States hopes that states will realize the high political and
economic costs of remaining an outlaw and seek to become
members.
F. Implications of Proliferation
The proliferation of chemical weapons has had, and would
have serious negative consequences for the international
community. Proliferation undermines international stability by
generally increasing the visibility and increasing pressures
for further proliferation among states fearful of potential
attackers who possess chemical weapons. Nations facing chemical
weapons may feel impelled to maintain a chemical arsenal to
deter attacks or to retaliate if they fear their conventional
forces are inadequate.
Proliferation can propel arms races, as the development of
chemical weapons in one country leads its neighbors to develop
their own capabilities in response. This has happened with
regard to nuclear weapons, as India justifies its program by
pointing to China, and Pakistan justifies its program by
pointing to India. Also, the more countries which have chemical
weapons, the more potential suppliers of chemical weapons
technology there will be to still other nations, whether
through overt sales, covert sales or smuggling. Furthermore,
each use of chemical weapons weakens the international
psychological and political taboo against their use. It should
also be noted that proliferation in one category of weapons of
mass destruction could undermine the norms against
proliferation of others.
Proliferation is dangerous even if chemical weapons are not
used in war. Proliferation of chemical weapons increases the
chances of a terrorist theft of such weapons. Political
disintegration or secession could mean that weapons could fall
into the hands of groups which are dangerous or poorly equipped
to manage the weapons safely. Moreover, while chemical weapons
are less costly than nuclear weapons, their development and
deployment divert resources from other social or military
programs. Last, production of chemical weapons increases the
risk of inadvertent environmental contamination, especially in
developing nations, which generally do not allocate scarce
resources to environmental and health safeguards, as evidenced
by the Iraqi chemical weapons program.
Violating the Convention will carry with it a demonstrable
political price. In cases of serious violations, the CWC
organization can recommend the imposition of collective
sanctions on a country engaging in illicit chemical weapons
activities. In cases of particular gravity, it must bring the
matter to the attention of the United Nations General Assembly
and Security Council. Finally individuals and corporations are
also subject to the prohibitions of the Convention and can be
prosecuted in national courts.
G. Purpose and Provisions of the Chemical Weapons Convention
The Chemical Weapons Convention is a major step beyond the
Geneva Protocol of 1925, which only banned the use in war of
chemical agents and, given the number of states who reserved
the right to retaliate in kind, was in effect little more than
a ``no first use'' of chemical weapons pledge. Under the
agreement signatories must declare, subject to international
confirmation: all chemical weapons, locations of chemical
weapons facilities, details of transfers of chemical weapons
and production equipment since 1946, and a detailed plan for
destruction of existing weapons--all chemical weapons are to be
completely eliminated within 10 years after the Convention's
entry into force--all chemical weapons production must cease
within 30 days of the entry into force--all chemical weapons
production facilities must be eliminated (or converted to
peaceful purposes, if permitted by the other State Parties).
In addition, the Convention forbids the use of riot control
agents as methods of war and reaffirms the international law
against the use of herbicides in war. It also provides for the
possibility for protection and assistance in the event of a
chemical weapons attack or threat of attack, for example
through the provision of defensive equipment and supplies.
The Chemical Weapons Convention provisions are as detailed
as possible to avoid ambiguities which could create problems in
verifying adherence or determining compliance. The Preparatory
Commission is in the process of elaborating further detailed
guidelines and provisions for declarations and inspections as
well as other aspects of implementation.
The Chemical Weapons Convention provides for resolution of
potential problems associated with the CWC by: (a) containing
provisions for the resolution of disputes between States
Parties or between States Parties and the Organization over the
application or interpretation of the CWC; (b) defining
procedures for the resolution of ambiguities that may arise in
the course of inspections, and; (c) providing provisions for
amendments or technical changes. Most importantly, the CWC
operates on the principle that a State Party must take action
in the event concerns are raised about its compliance. It is
not up to the Organization or State Party raising the
compliance concern to prove noncompliance. This puts the burden
of proof on the suspected State Party to alleviate the
noncompliance concerns of others and leaves it to States
Parties to judge for themselves if that State Party has
demonstrated its compliance.
During the negotiations, the United States proposed that
reservations be permitted. However, it received no support for
this position. The prohibition against imposing reservations
against the Articles of the Convention is intended to prevent
States Parties from undermining the basic obligations of the
CWC and creating an unequal system of obligations as happened
in the case of the Geneva Protocol. Reservations can be made to
the Annexes of the CWC, as long as they are not incompatible
with the object and purpose of the CWC.
Modifications to the CWC Articles and key provisions of the
Annexes (protection of confidential information, challenge
inspection and related definitions) may be made only through a
formal amendment process requiring three conditions: support of
a majority of States Parties, no State Party casting a negative
vote, and ratification by all the supporting States Parties.
The Administration has assured the Senate that the United
States will be present at all amendment conferences and cast
its vote, thus ensuring the opportunity for the Senate to
consider any future amendment approved by the conference.
The United States and other negotiating countries
recognized the need for possible technical and administrative
changes to the Annexes, based on future technological
development and practical experience. Thus, the CWC provides
simplified procedures for making changes to the Annexes. These
provisions were adapted from similar provisions found in other
arms control and other agreements to which the United States is
party, e.g., the Conventional Forces Europe.
To prepare for implementation of the Convention, the CWC
Preparatory Commission began work in February 1993 in The
Hague. The Preparatory Commission will operate until the
Convention enters into force, after which its recommendations
will be approved by the Conference of States Parties.
The Preparatory Commission has been tasked to develop very
technical, detailed operating procedures. The Preparatory
Commission participants understand that the Commission cannot
revise the provisions of the Convention or develop procedures
that undercut or change the basic provisions of the CWC.
Therefore, the work of The Preparatory Commission will not
substantially effect the CWC treaty text for which the
Administration is seeking Senate advice and consent; nor will
the U.S. ability to verify compliance with the CWC be affected
to any greater or lesser degree by the work of The Preparatory
Commission than by the provisions of the CWC.
III. Issues Considered in Resolution of Ratification
The Committee on Foreign Relations, while considering the
benefits of the Convention for the United States, was concerned
with several potential problems. Critics from the private
sector raised a number of troubling issues. Among the most
often-heard criticisms of the Convention are the following: it
is not completely verifiable but the verification provisions it
does contain could harm national security and proprietary
information interests; it is not universal; it will not rid the
world of all dangerous chemicals; it will lead to a reduction
in chemical weapon defenses; current uses of riot control
agents will no longer be permitted; not having chemical weapons
erodes deterrence, and the Convention limits the President's
options in the case or threat of war; it will be too expensive;
Russia's history of compliance on chemical and biological
weapons issues is in doubt, and ``loop-holes'' in the
Convention will allow Russia to develop new and dangerous
chemicals; and it poses Constitutional problems for U.S.
industry. Questions were also raised regarding enforcement, the
costs and safety of baseline destruction of U.S. chemical
weapons stockpiles, the ability of ``rogue'' inspectors to use
the inspection process in order to learn how to hide non-
compliance in their home countries from other inspectors, how
the Convention might effect the development of non-lethal
weapons development, and how the restriction on amendments to
the Convention's articles would effect the Senate's
constitutional right to make its advice and consent subject to
any reservations it sees necessary.
In order to explore these problems carefully and in detail,
the Committee held a series of hearings in the 103d and 104th
Congresses, at which Clinton administration and former Bush
administration officials, and nongovernmental witnesses were
invited to testify. A discussion of each issue follows.
A. VERIFICATION AND IMPLEMENTATION ISSUES CONSIDERED IN RESOLUTION OF
RATIFICATION
1. Verifiability.
Supporters and critics of the Convention alike agree that
the Convention's verification regime is not perfect. The nature
of chemical production makes it impossible to ensure that any
and all cheaters will be caught by any reasonable verification
regime. The Committee thus had to examine the risks of an
imperfect convention versus the risks of not having a
Convention at all.
Critics argued that cheating would be easy and diverse.
Chemical technology is relatively cheap, easy to acquire and
easy to conceal. Rogue producers could hide their production
and storage equipment in any number of natural or man-made
facilities. Determined cheaters could divert chemicals from
legitimate commercial production to covert weapons production
sites. Critics often pointed to allegations by Vil Mirzayanov,
a Russian scientist, about secret chemical weapons development
work in the Soviet Union and then Russia.
Competing U.S. interests had to be balanced in the
verification provisions. The U.S. and others had to balance the
need to protect sensitive non-chemical weapon national security
assets, as well as constitutional rights and non-chemical
weapon proprietary interests with the need for the access
necessary to ensure effective verification and deterrence.
During the negotiations, the U.S. sought to protect U.S.
proprietary concerns, constitutional rights, and national
security, while at the same time providing sufficient access
for effective verification and deterrence. Both the Bush and
Clinton Administrations and U.S. chemical industry are
satisfied with the final balance in the Convention, which
provides both sufficient provisions to protect that which needs
protecting and to address compliance concerns.
As James Woolsey, then Director of Central Intelligence,
said in testimony before the Committee:
* * * we in the intelligence community do not forget
that larger U.S. interests, both from a
counterintelligence perspective and in protecting
proprietary information and constitutional rights,
played a major role in shaping the scope and nature of
the [Convention's] inspection regime. Throughout the
many years of the [Convention's] negotiations,
representatives of the intelligence community were
fully consulted on these tradeoffs. The intelligence
community participated in and supported the choices
that were made.
The U.S. need for protection of the rights guaranteed under
the U.S. Constitution has been specifically included in the
challenge inspection provisions, which state that ``in meeting
the requirement to provide access * * *, the inspected State
Party shall be under the obligation to allow the greatest
degree of access taking into account any constitutional
obligations it may have with regard to proprietary rights or
searches or seizures.'' Thus, the United States. would not
violate the Chemical Weapons Convention in the unlikely event
access had to be limited or severely restricted because it
proved impossible to obtain access in a constitutionally
permissible manner.However, if a State Party restricts access,
it is obligated to make every reasonable effort to provide
alternate means to satisfy the compliance concern that
instigated the inspection.
Each nation that joins the Convention accepts the
unambiguous obligation to grant challenge inspections in the
event others suspect it is trying to violate the treaty's
prohibitions. Challenge inspections will be governed by
timeliness in order to thwart any attempts host officials might
make to delay the proceedings. Within 36 hours after arrival in
the challenged country, inspectors will begin monitoring
activities at the perimeter of the challenged site. Initially
they can only take photographs, examine traffic logs, and
patrol the perimeter under escort, but once the dimensions of
the perimeter are agreed the inspectors can take air, soil, and
effluent samples and use other monitoring instruments.
The guidelines for managing a challenge inspection are
similar to those of a routine inspection. That is, inspection
procedures are intended to allow the inspectors to assess the
status of activities without forcing states and companies to
forfeit unrelated security and business secrets. In that
regard, the specific areas of a challenged facility that
inspectors will examine will be subject to negotiation, and
host officials can use such safeguards as shrouding equipment
or logging off computers. Within 72 hours after inspectors
arrive at the perimeter, the host country must provide access
inside the perimeter to prove compliance. Instances where host
officials do not satisfy inspectors' requests and make ``every
reasonable effort to demonstrate'' its compliance will be duly
recorded in the inspectors' report. While these reports will
become the basis for subsequent action, compliance judgements
will be made by governmental officials, not the inspectors of
the international monitoring agency.
As useful as these provisions are, however, challenge
inspections are not a guarantee that all troubling situations
will be quickly resolved. Inspectors may emerge from a
challenge inspection with the ``smoking gun'' of proof, but,
far more often, ambiguities will remain in situations of
concern. Whether appropriate action is taken in these instances
will depend upon the will of the international community, which
in turn depends upon the political leadership of the U.S. and
other leading countries. When it comes to treaty enforcement,
there is simply no substitute for the international will to
take punitive action if the country in question does not
rectify its behavior. In other cases, the results of a
challenge inspection may be ambiguous: the challenged sites may
not receive a clean bill of health even though definitive
evidence of noncompliance is lacking. Even in such
circumstances, however, what the inspectors did or did not see
will surely tell the international community more than it
previously knew. This will initiate a process of ongoing
attention to the situation; over time, an ambiguous situation
will become clearer. As a result, concerned countries will be
able to adjust their policies accordingly, including modifying
export control policies and possibly adding other sanctions.
The United Nation's Special Commission's experience in Iraq
is a case in point. For the past 4 years, UNSCOM has worked
hard to bring Iraq to a complete accounting of its weapons of
mass destruction (WMD) programs. UNSCOM's firm leadership,
technical expertise, and inspection and monitoring activities--
and the Security Council's support for these activities--have
achieved measurable progress toward neutralizing Iraq's ability
to wage chemical, biological, or nuclear warfare.
UNSCOM's efforts, and those of the IAEA in the nuclear
field, have produced a steadily increasing volume of
information on Iraqi WMD programs. UNSCOM and IAEA's periodic
reports to the Security Council show how far we have come,
compared to what was there is now a sizable volume of facts and
data. However, the information was rarely provided in great
chunks. UNSCOM and IAEA inspectors ferreted it out by
persistent pressure on the Iraqis over an extended period,
backed by the Security Council. Steady pressure over time,
backed by international sanctions, has yielded impressive
results.
Some critics deride the Convention's monitoring
requirements by characterizing them as utterly deficient.
Ironically, during the 1980's these same critics touted these
same provisions--detailed data reporting accompanied by routine
and challenge inspections--as essential for success in
verification. The critics of this treaty are ever mindful, as
everyone should be, of the possibility that governments and
individuals may try to circumvent the law. Their thoughts are
mainly useful at this juncture for heightening vigilance, but
they are no justification for dismissing a treaty built around
the Ronald Reagan maxim that arms control is not about trust,
it is about verification.
Non-cooperation of rogue states will be taken into account
in U.S. judgments about compliance. The inspection team report
will contain not only the factual findings of the inspection
but also an assessment of the degree and nature of access and
cooperation granted. Judgment on the compliance of an inspected
State Party will rest upon an accumulation of information, e.g.
that provided by the challenging State Party, the nature of
cooperation of the inspected State Party, information from the
inspection and alternative means offered, and our own national
intelligence means.
The Chemical Weapons Convention also requires suspect
violators to undertake measures to satisfy concerns about their
compliance or face punitive measures. The Conference of States
Parties can recommend to States Parties that they impose
collective sanctions in the event of serious cases of non-
compliance, and must bring cases of particular gravity to the
attention of the U.N. General Assembly and Security Council.
The committee heard repeated testimony from government and
non-government experts that the Convention creates the most
comprehensive and intrusive verification regime in the history
of arms control agreements. This regime requires detailed
initial and annual declarations, access to declared chemical
production facilities, access to undeclared but suspect
facilities and access to other related locations through
routine and challenge inspections. These declaration and
verification provisions cover virtually every aspect of a
chemical weapons program. Moreover, the Convention puts the
burden of proof on suspected violators when there is sufficient
doubt about their compliance. Suspected parties must either
undertake specific, timely measures to satisfy any doubts or
face punitive measures.
The inspection regime cannot, however, guarantee that all
cheating will be detected. But John Holum, Director of the U.S.
Arms Control and Disarmament Agency (ACDA), testified that this
does not mean the Convention is not in that nation's interest.
He argued that any significant chemical weapons program of
concern for national security would have to go far beyond
small-scale production and storage. Holum argued that:
First, a significant [chemical weapons] program * * *
must include development, testing, production,
weaponization, storage, military training and other
activities. Each additional step increases the risk of
detection. The risk grows over time, as evidence from a
variety of potential sources accumulates. The
[Convention's] verification regime will heighten that
risk of discovery and potentially provide an additional
source of evidence. The larger, more systematic and
sustained the violation, the higher the probability
that we will obtain evidence of the illicit [chemical
weapons] activity. Clearly, a program of significant
size and scope would be difficult to conceal.
No treaty is 100 percent verifiable; thus since the
beginning of the negotiations, the United States has taken the
position that the final agreement must be effectively
verifiable. The administration believes that the CWC is
effectively verifiable, and that it protects and enhances U.S.
national security interests. This conclusion is reflected in
the verification report required by Section 37 of the Arms
Control and Disarmament Act submitted to the Senate. That
report reflects a consensus of the executive branch agencies
and intelligence community. The key criteria taken into account
in U.S. determination of effective verifiability were: (a)
whether potential violations pose unacceptable risks to U.S.
interests; (b) whether the CWC provides acceptable level of
confidence that States Parties are in compliance with
provisions; (c) whether the CWC facilitates the ability of the
United States to detect significant violations in a timely
manner; (d) whether the CWC serves to deter violations by
increasing the political significance of violations, raising
costs and risks associated with cheating; and (e) whether the
CWC was comprehensive in scope, so when taken in the aggregate,
the regime provides an interlocking web of information which
promotes effective verification.
This raises the issue of what constitutes ``significant.''
In his testimony before the committee, General John
Shalikashvili, Chairman of the Joint Chiefs of Staff, addressed
the issue of what would be a significant amount of chemical
weapons from a military perspective. Unfortunately, there is no
one easy definition of ``significant'' as the quantity of
chemical weapons needed to seriously impede an opposing force
is dependent on the situation. While this issue is also
discussed below, it is worth noting here that General
Shalikashvili stated firmly that from:
* * * a military perspective the Chemical Weapons
Convention is clearly in our national interest. The
Convention's advantages outweigh its shortcomings. The
United States and all other [chemical weapons] capable
state parties incur the same obligation to destroy
their chemical weapons stockpile. While less than
perfect, the verification regime allows for intrusive
inspections while protecting national security
concerns. The nonproliferation aspects of the
Convention will retard the spread of chemical weapons,
and in so doing, reduce the probability that U.S.
forces may encounter chemical weapons in a regional
conflict. Finally, while foregoing the ability to
retaliate in kind, the U.S. military retains the
wherewithal to deter and defend against a chemical
weapons attack. I strongly support this convention and
respectfully request your consent to ratification.
The United States is faced with the problem of chemical
weapon proliferation with or without the Convention. With or
without it, the United States must try to detect foreign
chemical weapons programs, distinguishing them from legitimate
commercial activity and assess their threat to U.S. security.
The United States now uses a variety of intelligence gathering
methods toward this end. The key question is whether the
Convention would help or hinder the current approach. The
United States does not need chemical weapons to deter chemical
weapon use against its forces because superior U.S. military
force, coupled with a modern defense program, is quite adequate
to deter or respond to chemical weapon use.
CIA Director James Woolsey reinforced the point that, with
or without the Convention, the intelligence community is tasked
with detecting the existence of, and determining the threat to
the United States from, other countries' chemical weapons
programs. He stated that ``it is to this broader mission that
the [Convention] can make a contribution'' by increasing the
amount and type of information available to the intelligence
community and by providing a basis for comparison with
information the United States currently obtains by other means.
This information could then be used either to build confidence
where all the information is consistent or flag suspicions
where there are inconsistencies or omissions. Wool- sey called
the Convention another ``tool to add to our collection * * *
with a broad applicability which can help resolve a wide
variety of problems * * *. We will know more about the state of
chemical warfare preparations in the world with the treaty than
we would know without it.'' ``Entry into force'' of the
Convention would not necessarily change the number or types of
problems associated with the proliferation of chemical weapons
programs around the world, but it would increase the ability of
the United States to discover and challenge those programs. In
short, the administration argues, the Convention does nothing
to weaken existing national technical means of verification
but, indeed, enhances them. The committee fully expects the
administration to vigorously pursue access to information from
the inspection process to ensure that the intelligence
community does indeed have the information it needs to track
and evaluate compliance.
Many countries were sensitive to the possibility of U.S. or
Western control of the CWC verification assets for national
interests. They were concerned that they might be the targets
of information or, at a minimum, that the CWC organization
would use its inspection assets to satisfy Western security
needs rather than their own. Thus, CWC provisions are drafted
such that the United States could provide such information if
it so desired. The provisions are also drafted such that their
application will be nondiscriminatory. The verification
resources of the OPCW are available to all States Parties on
the same basis. If some states decide to supplement those
resources with national assets, that is their prerogative.
There are provisions in the CWC that allow for States
Parties to receive information from national declarations of
other states as well as from routine and challenge inspections.
There are also provisions in the confidentiality annex for the
protection of information provided by States Parties. The
United States would have to ensure that any intelligence
information it might provide to the CWC Organization is
protected properly.
Verification judgments should not be confused with
monitoring assessments. The Intelligence Community monitoring
effort is one element designed to provide evidence contributing
to U.S. verification and compliance judgments. Compliance
judgments incorporate policy judgments which consider other
inputs such as the negotiating record, legal interpretations,
and compliance analysis. Compliance judgments are based on the
relationship of specific events to more generic treaty
provisions and on whether, given the range of uncertainty in
monitoring confidences, a violation can be determined to have
concurred.
It would be a difficult task to monitor all chemical
facilities worldwide. However, the majority of chemical
industry facilities declarable under the Convention are located
in Western countries, where the likelihood of cheating is
minimal if not totally absent. About three-fourths of the
nations assessed to possess or have the capability to produce
chemical weapons have already signed the CWC--and one would
expect some focus of monitoring capability, especially
challenge inspection requests, on the more likely prospects of
concern.
2. Universality and Effectiveness
Few people believe that all countries will ratify the
Convention. Some of the countries that the United States
worries already have or are acquiring chemical weapons
programs--such as Iran, Iraq, North Korea, or Syria--might well
be the very ones which do not ratify it, at least for the
foreseeable future. Not all chemicals that could be used in
chemical weapons production will be banned either, as some of
those chemicals have legitimate commercial use. It would be
both impractical and harmful to industry to attempt to
completely rid the world of dangerous chemicals. The committee
was therefore concerned about the Convention's effectiveness,
because as long as certain chemicals and the political will to
use them as weapons remain, the threat of a chemical weapons
attack also remains.
The committee heard testimony from administration officials
and outside experts that the Convention's strengths
significantly outweigh its weaknesses. First, the Convention
creates an internationally accepted political standard against
which all countries can be measured and held accountable. Any
country which refused to be held to that norm would immediately
be seen as suspect and therefore subject to increased
monitoring by the intelligence communities. Specifically, the
Convention creates a legal regime prohibiting not just the use,
but also the development, production, stockpiling, or
transferring directly or indirectly of chemical weapons. There
is currently no such internationally accepted law and therefore
no legal basis on which to challenge chemical weapons
development, production or trade. One witness likened chemical
weapons to murder. Everyone can proclaim that murder is wrong,
but unless there are laws against it, there is no legal ability
to arrest murderers. The Convention will provide a basis for
both challenge and punitive action.
Second, the Convention creates a financial incentive for
countries to join by controlling, and in some cases restricting
international trade in certain chemicals for nonparties. The
restrictions tighten significantly against nonparties in the 3
to 5 years following the Convention's entry into force, making
it increasingly in a country's commercial interest to join.
Fourth, even for nonparties the Convention creates a deterrent
to chemical weapons proliferation by making it harder and more
costly to get the chemicals necessary for production. The
Convention's trade restrictions force would-be proliferators to
use more difficult, costly, circuitous paths that are arguably
more detectable in the long run.
Fifth, the Convention provides for some assistance to state
parties that are attacked or threatened with attack from
chemical weapons. This type of assistance could take the form
of detection equipment and alarm systems, protective equipment,
decontamination equipment and decontaminants, medical antidotes
and treatments and advice on any of these measures. Some
critics erroneously argued that this provision committed the
developed nations to share their chemical defense technology
with Third World countries thus permitting, in effect,
technology transfers that would aid the potential development
of more sophisticated Third World chemical weapons. Nothing in
the Convention requires developed countries to share this type
of information.
Finally, as one witness pointed out, if the Nuclear Non-
Proliferation Treaty is any example, membership will likely
increase over time as the political and cost-benefit
calculations of nonparties change.
While some witnesses pointed to the Convention's
imperfections as reason for the Senate to deny ratification,
supporters pointed out that no arms control agreement in
history has been either completely global or completely
effective. Michael Moodie, President of the Chemical and
Biological Arms Control Institute, and a former Bush
administration official, pointed out that expecting the
Convention to make the world completely safe from the threat of
chemical weapons all by itself is asking it to shoulder a
burden it was never designed to carry. Only when the Convention
works in concert with other policy tools, including national
intelligence monitoring, a robust chemical defense program and
an overwhelming conventional deterrent, will the United States
be prepared to meet the challenge of chemical proliferation.
Moodie also argued that the Convention's over-all effectiveness
will ultimately depend, at least in part, on the political will
of its members to act in the face of violations.
General Shalikashvili also pointed out that while not all
countries in the world have signed the Convention, and not all
signatories will ratify the Convention, the
* * * list of signatories includes the Russian
Federation, which possesses the world's largest
declared chemical weapons stockpile. The eventual
destruction of approximately 40,000 tons of declared
Russian chemical weapons will significantly reduce the
chemical threat faced by United States forces.
In his testimony before the Senate Foreign Relations
Committee, United States Secretary of State Warren Christopher,
argued: ``The best protection against these weapons [chemical]
is to make it more difficult for hostile nations and groups to
obtain and use them. By blocking the supply and demand for
chemical weapons, the Chemical Weapons Convention does just
that.''
Lt. General Wesley Clark, the Director of Strategic Plans
and Policy in the Office of the Chairman of the Joint Chiefs,
told the Senate Foreign Relations Committee: ``The convention's
imposition of an internationally recognizable obligation to
destroy all chemical weapons essentially places all other CW
capable state parties on an equal footing with the United
States. Because of the convention's trade restrictions and
provisions, deproliferators outside the convention will find it
increasingly more difficult to acquire the chemical precursors
essential to building a chemical weapons stockpile.''
U.S. Secretary of State Warren Christopher added: ``The CWC
will have a deterrent effect on CW proliferations and put new
pressures on countries that remain outside the treaty. A
country like Libya that requires foreign assistance to begin or
further develop a CW program would find it more difficult since
States Parties will be prohibited from assisting anyone in
activities banned by the CWC and will also be required to ban
trade with non-States Parties in certain chemicals that could
be used to make chemical weapons.
In addition, the CWC will establish an unprecedented
international norm against virtually every aspect of an
offensive CW program, providing a basis for international
action against proliferators and enhancing political pressure
against countries that continue to engage in such programs.
Those outside the CWC will be subject to political isolation
and intensified scrutiny for signs of CW activity.
Finally, the CWC will afford better information on rogue
states' efforts to acquire chemical weapons. It will increase
our access to information about clandestine chemical weapons
programs even in countries that do not join; the declaration
and verification provisions of the CWC require unprecedented
transparency regarding CW-relevant activities and provide the
United States with otherwise unavailable information that will
facilitate U.S. detection and monitoring of illicit CW
activities.''
Mr. John Holum, Director of the United States Arms Control
and Disarmament Agency, clearly stated before the Senate
Foreign Relations Committee: ``First, we have already decided
to eliminate a large part of our chemical arsenal * * * . As we
unilaterally dismantle our own chemical weapons, it makes sense
to seek the destruction of other countries' chemical weapons as
well. The Convention imposes binding obligations on all parties
to do what the United States has already begun to do. So the
Convention has great value even if a few radical states do not
join at the outset.''
``Second, we are convinced that the answer to the use of
chemical weapons must not be retaliation in kind, but rather a
full range of defensive measures * * * . The Persian Gulf War
provided a convincing, real life demonstration that the U.S.
military is highly capable of deterring or responding to a
chemical weapons threat with superior conventional military
force and strategy.''
Third, ``by establishing a global norm against chemical
weapons, the Convention will give the United States and world
community a more effective means of pressuring radical
governments to abandon their CW capabilities.''
Lt. General Wesley Clark, the Director of Strategic Plans
and Policy in the Office of the Chairman of the Joint Chiefs,
added: ``This treaty controls the sale of dangerous chemicals.
And therefore, countries like Iran or Iraq or Libya will have a
much more difficult time getting the chemicals to support their
own domestic program.''
To the Senate Foreign Relations Committee, the Director of
the Chemical Weapons Convention Implementation Project at the
Henry L. Stimson Center, Amy Smithson testified: ``Foreign
policy is not brewed like instant coffee: success in the
international arena requires the identification of a worthy
goal, the selection of a suitable course of action, and the
fortitude to pursue that policy over the long-term * * * . Over
155 nations have joined the United States in signing the
Convention--an ample demonstration of just how strongly the
global community feels that the Convention is the appropriate
vehicle to establish a strong behavioral norm against chemical
weapons proliferation and the legal foundation to curtail it.''
3. Costs
Critics of the Convention argue that the costs of
implementation outweigh the benefits to national security.
These costs, they claim, are both direct and indirect. The
direct costs include the creation and maintenance of
international and domestic bureaucracies to carry out the
inspection and monitoring regimes. Indirect costs include the
potential loss of national security and proprietary
information.
The chemical industry in the United States, as represented
by the Chemical Manufacturers Association (CMA), understands
and accepts the costs of the Convention and has been vocal in
its support of the Convention. As Fred Webber, the President of
CMA, wrote in the Washington Post in April 1995:
The chemical industry has been an outspoken supporter
of * * * the Chemical Weapons Convention * * * the
unpleasant truth--last seen during the Persian Gulf
War--is that commercial facilities in Iraq were used
for military purposes. The best safeguard against that
happening again is to make all commercial chemical
plants subject to the scrutiny of international
investigators. Honest businesses have nothing to fear.
Anyone with other motives will run the risk of getting
caught in the act. The treaty is the best means
available to prevent legitimate chemicals from falling
into the wrong hands.
The industry has been involved not only in negotiation of
the Convention, but also in drafting implementing legislation
for the Convention. Referring to the draft implementation
legislation presented by the administration to Congress, Dr.
Will Carpenter, a representative of the (CMA), testified that
if ``the final regulatory package reflects the general intent
behind much of the legislation, we [CMA] believe that the
potential regulatory burden on, and intrusion in commercial
facilities should be minimal.''
In his testimony, General Shalikashvili also addressed the
issue of potential loss of national security information. He
cited mock chemical weapons inspections done by the services
with the assistance of the On Site Inspection Agency. General
Shalikashvili claimed that the inspections ``have proven that
while the Convention's inspections may be costly in terms of
personnel and resources, U.S. facilities can still protect
themselves against the disclosure of national security
information and information on sensitive equipment and
facilities * * * .'' He concluded that, on balance, the
Convention's advantages outweighed its disadvantages, saying
the ``verification regime allows for intrusive inspections
while protecting national security concerns.''
In an answer to questions for the record the administration
addressed the issue of the potential loss of proprietary
information. While this issue is also addressed below, it is
worth noting here that the Confidentiality Annex contains
procedures for States Parties to designate sensitive
information that requires special handling and to have any
concerns about breaches of confidentiality investigated. Also,
the Annex will establish different levels of sensitivity of
confidentiality for data or documents, to be based on
universally applied criteria. Access to confidential
information will be regulated according to classification, and
dissemination of such information within the Organization will
be handled on a ``need to know'' basis. The Annex mandates that
the Preparatory Commission develop the classification system
for the Conference of the States Parties to approve after the
Convention enters into force. The Annex further sets up rules
for how information is to be protected and under what
circumstances it may be released. Finally, it provides
procedures for punitive action against employees who violate
those rules.
At committee request, the General Accounting Office
prepared a report in 1994 on the Status of U.S.-Russian
Agreements and the CWC. The report's key conclusions and
recommendations with regard to costs are as follows:
U.S. plans call for $85 million more to be spent on
research and development efforts designed primarily to
refine and improve the convention's verification
regime. These unilateral expenditures are voluntary and
are aimed mainly at supporting the OPCW, although they
also support the bilateral destruction agreement with
Russia. A key question to consider now is whether the
United States should continue paying for all such
efforts without first seeking to obtain support funding
from the OPCW. We recognize that member states may not
be able to support the entire U.S. research effort.
Given that the OPCW is a multilateral organization
whose efforts will benefit all members, it appears
reasonable to expect that significantly greater cost
sharing of OPCW activities should be undertaken by
other member countries. By seeking OPCW funding
support, the United States would also obtain some
evidence as to whether the international organization
deems the planned U.S. research to be of substantive
value to the verification process.
We recommend that the Director, ACDA, and the
Secretary of Defense reach an agreement with the
Preparatory Commission (and subsequently the OPCW) on
how the United States can be reimbursed for some of the
costs of U.S. research and development efforts which
directly support the chemical weapons verification
regime.
With regard to U.S. compliance efforts, the Navy and
Army have chosen to pursue a site diagram program which
costs millions of dollars to develop and will require
millions of dollars to maintain and keep operational.
The Air Force has chosen to use a low-cost option for
transmitting site diagrams to Washington. The Army and
Navy could save about $5.6 million over the next 6
years by adopting the Air Force system.
We recommend that the Secretary of Defense review the
treaty compliance program of the military services with
the view of determining and implementing the most cost-
effective system for generating and transmitting site-
diagrams in the event of a challenge inspection.
U.S. Secretary of Defense, William J. Perry, argued before
the Senate Foreign Relations Committee: ``While it is true that
this will be a complex and a costly process, I want to point
out that Congress has already directed the Executive Branch to
undertake the major part of this obligation without regard to
the CWC treaty.''
In his testimony before the Senate Foreign Relations
Committee, Dr. Brad Roberts, a Member of the Research Staff at
the Institute for Defense Analysis maintained: ``The cost to
the United States of sustaining the OPCW will be far lower than
the cost of sustaining a CW stockpile, equal to or lower than
what it invests in other arms control measures, and a pittance
compared to what it spends on chemical defense.''
Dr. Brad Roberts added: ``The costs to the U.S. Treasury
and to U.S. industry are within reasonable bounds. Measured in
relative as opposed to absolute terms, they are minimal. The
regulatory burden on industry that will be created by the CWC
is relatively modest, given the burdens already falling on
industry, and is far preferable to jeopardizing industry's
long-term competitiveness by failing to create agreed trading
rules.''
4. Enforcement/sanctions
The Committee also considered the issue of penalties for
noncompliance with the Convention. Critics pointed out that
there is little in the way of punitive measures and that those
that are in the Convention are too vague to be an effective
deterrent.
The question of penalties for misbehavior was addressed
late in the negotiations. The lack of specificity regarding
both what sanctions would be appropriate and how to apply them
is indicative of the difficulty of these negotiations. That
said, the Convention's sanctions and provisions are more
comprehensive than those of any other similar agreement. Minor
violations would be handled within the Executive Council of the
Organization for the Prohibition of Chemical Weapons. In the
case of more serious violations, the Conference of State
Parties can, upon the recommendation of the Executive Council,
restrict or suspend a State Party's rights and privileges under
the Convention or recommend that States Parties impose
unspecified collective measures. The U.N. General Assembly and
the Security Council would consider violations of ``particular
gravity.''
Supporters of the Convention argue that this lack of
specificity gives a degree of flexibility and raises a
potential violators uncertainty about penalties. In the end,
the effectiveness of the prospective arrangements may only
become clear if there are violations, the violations are
discovered, and the international political will exists to
counter them.
5. Destruction of stockpiles
The committee had several questions regarding the
destruction of the U.S. stockpile of chemical weapons,
including the estimated costs, where the United States is in
the process and how much money has already been spent, the
safety of baseline incineration, and what other countries think
of incineration as a method of destruction.
According to the administration the life-cycle cost for
destroying U.S. chemical stocks is currently estimated as $12.4
billion over the period of destruction. The cost of destroying
the nonstockpile items the Convention requires, such as
chemical weapon production equipment, is approximately $1
billion. These figures do not include the costs of
verification. As of the end of March 1996, the Defense
Department had spent approximately $3.1 billion on the Chemical
Stockpile Destruction Program. The administration pointed out
that the United States will be paying these costs regardless of
whether or not the Convention enters into force.
In 1969 the United States stopped producing unitary
chemical weapons agents and munitions. Since then the stockpile
has become increasingly old, and in some cases unsafe.
Following a report of the Chemical Warfare Review Commission in
1985, Congress mandated in the Defense Authorization Act of
1986 (P.L. 99-145) that the Defense Department dispose of the
unitary chemical weapons stockpile by September 30, 1994. The
deadline was extended twice, and in the 1993 Defense
Authorization Act (P.L. 102-484), the destruction deadline was
extended to December 31, 2004, a date nearly identical to the
deadline required by the Convention. Yet, with or without the
Convention, U.S. law already requires the most difficult
aspects of destruction--that of the chemical weapons agents
themselves--to be destroyed on a 10-year timetable. A key
advantage of the Convention is that it requires other countries
to destroy their chemical weapons on the same timetable.
In fiscal year 1996, the Chemical Demilitarization Program
has a budget of roughly $854 million. To date, the United
States has completed construction of two disposal facilities:
Johnston Atoll Chemical Agent Disposal System in the Pacific
Ocean and the Tooele Chemical Agent Disposal Facility in
Tooele, Utah. Johnston Atoll began full-scale operations in
January 1994 and has destroyed over 120,000 individual
munitions and 1,000 tons of chemical agent so far. This
includes over 45,000 105 mm artillery projectiles, over 72,000
M55 rockets, and some 3,000 MC-1 bombs. Other destruction
facilities are being planned at the seven remaining chemical
weapons stockpile storage sites in the United States. The
administration provided the following update on the status of
specific aspects of the destruction program:
Johnston Atoll Chemical Agent Disposal System (JACADS).
JACADS has fully recovered from the damage done by Hurricane
John in 1994 and has completed destroying the MC-1 and MK-94
bombs previously stored on Johnston Island. JACADS is currently
preparing for the upcoming GB 155 mm Projectile Campaign. An
application for renewal of the JACADS operating permit has been
submitted to the Environmental Protection Agency and is
expected to be acted upon by the summer of 1996. Destruction
operations at the facility are scheduled to be completed in
1999.
Tooele Chemical Agent Disposal Facility (TOCDF). Tooele has
completed systemization testing, in which the individual
process components (e.g. disassembly equipment, conveyors and
incinerators) were tested as a complete process line using
simulated chemical items. Surrogate burns mandated by the State
of Utah for four of the facility's furnaces were completed as
has the Toxic Substances Control Act (TSCA) R&D burn for the
deactivation furnace. Toxic disposal operations are scheduled
to begin in early 1996 and to be completed in 2002.
Anniston Chemical Agent Disposal Facility (ANCDF). The
ANCDF's updated application for the necessary environmental
permits were submitted to the State of Alabama in February 1995
and are expected to be acted upon in the fourth quarter of FY
1996, pending receipt of the necessary environmental permits
from the State of Alabama. Destruction operations are currently
scheduled to begin in the second quarter of FY 2001 and to be
completed by 2004.
Umatilla Chemical Agent Disposal Facility (UMCDF) and Pine
Bluff Chemical Agent Disposal Facility (PBCDF). Umatilla and
Pine Bluff's applications for the necessary environmental
permits were transmitted to the State of Oregon and the State
of Arkansas, respectively, in March 1995 and June 1995,
respectively. Construction is expected to begin in the fourth
quarter of FY 1996, pending receipt of the necessary
environmental permits.
Remaining CONUS sites. The remaining CONUS sites (Pueblo,
Aberdeen, Blue Grass, and Newport) are still in various stages
of design. Pueblo's required environmental permit application
was transmitted to the State of Colorado in October 1995.
Lexington's environmental permit application was transmitted to
the State of Kentucky in December 1995. Permit applications for
Aberdeen and Newport are expected to be transmitted to State
authorities in November 1996 and July 1997, respectively.
The administration anticipates that the United States will
be able to meet the 2004 deadline, provided that environmental
issues can be resolved in a ``timely manner.''
With regard to safety issues the administration stated that
the Department of Defense's position is that the chemical
stockpiles can be safely destroyed using the baseline
incineration destruction process. The National Research Council
(VX) of the National Academy of Sciences concluded that
baseline incineration is a safe and effective process for
destroying chemical agents and munitions. The [National
Research Council] also concluded that the risks increase over
time as stockpile deterioration inevitably progresses, thus
making the weapons more dangerous to store or to destroy.
The U.S. Army concurs with the National Research Council's
conclusions that the baseline destruction process is safe and
effective and should proceed without delay, and that the risks
from continued long-term storage of the agents outweigh the
potential risks from incineration. While the Army plans to move
ahead on destruction, it also plans to research two alternative
technologies: stand-alone neutralization and neutralization
followed by biological treatment. The National Research Council
recommended that both methods receive further study. These two
methods are fundamentally different from incineration and other
destruction methods in that they operate at low temperatures
and low pressure. The administration leaves open the
possibility that it may adopt one of these two methods at low-
volume bulk-agent sites, depending on the results of the study.
The Army is also following some of the National Research
Council's other recommendations on safety and cost-
effectiveness.
The administration believes that the risk of storing
chemical weapons increases over time as the stockpile
inevitably deteriorates and the weapons become more dangerous
to store or destroy. In sum, it believes that the ``present
program can ensure environmentally safe destruction within the
10-year timeline of the [Convention].''
As to other counties' views of the incineration process,
the administration reported that Germany, the United Kingdom,
and Canada have all used incineration-based technologies to
destroy chemical weapons. Germany has built an incineration
facility near Munster, for the destruction of mustard-agent
munitions, and plans to build a second incineration facility
for agents containing arsenic. The administration pointed out
that the ``German government considers incineration technology
to be environmentally safe, even given its stringent
environmental regulations.'' After the United Kingdom used
incineration to destroy mustard-containing munitions, it
determined that negligible toxic emissions were released into
the atmosphere as a result of the process. The Canadian
government used incineration to destroy mustard gas and the
neutralized waste from nerve agent. The Russian Federation,
however, has not yet decided on the technology it plans to use
to destroy its chemical weapon stockpile.
Steven R. Bowman, an analyst in National Defense for the
Congressional Research Service, prepared, at Committee request,
a study of ratification and implementation issues in 1994. This
study is attached.
Mr. Bowman writes with regard to the United States
destruction program:
The United States is by far the country most advanced
in its [chemical weapons] destruction program. In the
early 1980's, the Department of Defense (DOD) declared
approximately 90% of the U.S. chemical stockpile
(28,000 agent tons) obsolete. This decision, coupled
with a 1985 congressional directive to destroy these
munitions by 1999 (now amended to 2004), led DOD to
begin planning a destruction program over a decade ago.
Nevertheless, it is not entirely assured that the
United States will be able to meet the 2005 Convention
deadline. Current DOD estimates call for completing
destruction on time, but a number of factors could
intervene.
The most unpredictable factor is the length of time
it will require to obtain the necessary federal and
state permits to build and operate the destruction
facilities. The current plan calls for destruction
facilities to be built at each of the eight [chemical
weapons] storage depots. For each site, the U.S. Army
must obtain separate permits under the Resource
Conservation and Recovery Act (RCRA) and the Clean Air
Act Amendments of 1977. In addition, environmental
impact statements are required under the National
Environmental Policy Act of 1969. The General
Accounting Office has expressed doubt that current
estimates allow sufficient time for fulfilling existing
permit application requirements.
Adding to the federal requirements, it is clear that
the destruction program will face additional obstacles
at the state level. In the last two years, public
concern in the regions where destruction facilities
will be built has heightened considerably. The primary
fears are of toxic emissions from the destruction
process and the possibility of catastrophic accident.
Public interest groups have arisen and been influential
in getting state governments to consider or enact
highly restrictive standards for any [chemical weapons]
destruction facility. In fact, Kentucky and Indiana
have passed legislation that could significantly delay,
or even prevent, building destruction incinerators,
while Colorado and Maryland are considering such
legislation. Even if federal and state permits are
granted, public challenges, either judicially or
politically, could also bring delays. If Convention
deadlines are to be met, Congress may have to address
the extent to which state legislation or the courts can
impede the United States' fulfillment of international
treaty obligations.
Another potential obstacle to meeting Convention
deadlines is the question of method of destruction. The
Army's chosen method (called baseline) is to drain the
munitions and then incinerate the chemical agent and
munitions parts. Though the choice of this method came
after extensive study of alternatives, incineration has
still raised strong public objection. As a consequence,
Congress directed the Army to reconsider alternative
technologies. As part of this effort, the National
Research Council of the National Academy of Sciences
has completed a review of potential alternative
methods. The Army is to study this review and provide
Congress by December 31, 1993, a detailed report on how
alternative technologies compare to the baseline method
in terms of safety, environmental protection, and cost
effectiveness.
The National Research Council report observes that
there are possible alternative technologies, but they
are untested. The Council estimates that the necessary
research and development could take a minimum of five
years before a pilot plant could be operational for
evaluation. The Council's report also noted that
additional pollution control devices could be added to
the baseline technology to reduce further the
possibility of toxic emissions. In looking at the
Council's report, no alternative technology appears to
surpass the current approach with regard to safety,
environmental protection, and cost. The cost could be
particularly prohibitive given the delay that new
research and development would entail. Nevertheless,
the House Appropriations Committee believes that the
Council's report will cause significant changes to the
destruction program's budget and structure, and
consequently has recommended adding $25 million to the
program's FY 1994 appropriation in anticipation of
additional research and development, and deferred $50.7
million in procurement funds.
If these potential problems do prevent the United
States from meeting Convention deadlines, it can apply
to the OPCW for an extension. The political
consequences of doing so, however, may be undesirable.
Any delay on the part of the United States would
probably result in an equal or greater delay on the
part of Russia * * *. In addition, in the eyes of many,
the status of the United States as a major proponent of
the Convention and arguably the most technologically
advanced Nation places a greater responsibility on its
adherence to Convention provisions. This dynamic could
lead to other nations with smaller, though politically
more destabilizing stockpiles, also to plead
difficulties and request extensions of the destruction
deadlines.
With regard to the Russian destruction program, Mr. Bowman
writes:
Russia possesses the world's largest chemical weapons
stockpile, estimated to be 40,000 to 50,000 tons. Its
plans for a destruction program are embryonic, and the
country's on-going political and economic turmoil leads
most observers to believe it will not be able to meet
Convention deadlines on its own. Russia has established
a commission * * * to oversee the destruction program *
* * and has made it clear that Russia will require both
technological and financial assistance to destroy its
chemical weapons. In addition to direct foreign
assistance, Russia is considering establishing an
investment bank to encourage commercial participation,
and hopes to recycle some commercially valuable
compounds from the destruction process for sale * * *.
Congress has responded to Russia's call for
assistance, appropriating $55 million in aid to be used
for the initial planning and evaluation stages of the
Russian program. In addition, the United States has
agreed to share destruction technology and participate
in the exchange of technical experts. To facilitate
these efforts, the United States has opened a Chemical
Weapons Destruction Support Office (CWDSO) in Moscow.
The questions that remain unanswered, and are perhaps
unanswerable for the time being, are what additional
assistance Russia will request or require, and whether
it will be able to meet Convention timetables, even
with additional assistance.
Aside from financial concerns, Russia faces other
obstacles that could substantially delay its
destruction program. With the continuing governmental
disarray, Russia has been unable to establish a
managerial structure with sufficient authority to carry
out a program. Government bureaucracies shunning
responsibilities, less than full cooperation from the
military, and uncertainties about the tenure of central
authority have all contributed to the problem.
Secondly, as democratization proceeds fitfully, and
the central government no longer has overriding
authority, public opinion has begun to play a stronger
role. As in the United States, communities where
destruction facilities may be built have started to
voice concerns about public safety. One facility,
completed over two years ago, has been closed and will
not be utilized owing to local protests.
Through both the OPCW and the CWDSO in Moscow, the
United States should be able to follow closely the
progress of the Russian destruction program. Russia's
solicitation of assistance, both technical and
financial, from the United States and other Western
nations will also provide opportunities to monitor the
destruction program.
The Administration has stated that meeting the CW
destruction time lines mandated in the CWC presents a challenge
for Russia. However, as discussed below, the U.S. is working
with Russia in a number of areas to help it establish a
realistic and executable CW destruction program. In addition to
the CWDSO in Moscow and the destruction planning assistance,
the U.S. is also working with Russia on a joint evaluation of
the Russian nerve agent destruction process to determine, among
other things, whether it meets CWC requirements.
6. ``Rogue'' Inspectors
The Committee was concerned with the possibility of
``rogue'' inspectors who might use their participation in the
Organization's international inspection process as a way to
learn how to ``cheat'' on inspections and then pass that
information on to their national governments. Critics pointed
out that Iraqi participants in International Atomic Energy
Agency inspections had done just that. They used the inspection
process to learn how to hide critical information about Iraq's
nuclear program from inspectors in Iraq.
In a response to a question for the record, the
administration stated that it was unlikely that any information
an individual inspector was able to obtain could be more than
marginal help to a determined cheater. The administration
stated that there is nothing particularly unique about the
inspection process, that most of the procedures are specified
in the treaty itself or will be detailed in the Organization's
inspection manuals and negotiated facility agreements, and all
of this information is readily available to States' Parties.
While acknowledging the point that an experienced corrupt
inspector could gain some additional information that could
make it easier for a State Party to hide its illicit
activities, the administration claimed that the advantages
would be slight. The administration went on to state that the
``viability of the [Convention] will depend on the reasonable
assumption that the vast majority of international inspectors
are honest and dedicated to the goals of the regime.'' Finally,
the Technical Secretariat will have the responsibility of
ensuring that inspectors are ``appropriately advised and
reminded'' of security requirements.
7. Chemical weapons convention (CWC) funding
The Organization for the Prohibition of Chemical Weapons
(OPCW) will be funded through signatories' contributions. In
addition, there will be the costs associated with domestic
implementation.
The CWC is both a disarmament and non-proliferation treaty.
In view of the contribution of the CWC to U.S. national
security, the Administration believes the Convention is worth
its relatively modest price. The United States and a number of
other countries pay the largest percentage of the overall cost,
based upon the United Nations formula of cost assessment
adjusted to take into account differences in membership. This
formula is specified in the CWC and applies to all signatories'
contributions to the Preparatory Commission and States Parties
assessments under the CWC. The U.S. assessed contribution to
the overall cost will be approximately 25 percent.
Additionally, a State Party with chemical weapons and
chemical weapons production facilities (CWPF) is expected to
pay not only for their destruction, but also for verification
activities associated with the monitoring and destruction of
these CW and CWPF.
The CWC is different than other multilateral arms control
agreements in that it requires certain detailed procedures for
verification be developed and an international organization to
conduct verification activities be established in the two year
time period between opening for signature and entry into force.
This is necessary to ensure that compliance can be monitored
from the moment the Convention enters into force.
As of July 31, 1995, 93.9 percent of the 1994 budget
assessment had been paid. More than half of the Member States
had paid their contributions in full or made payments on
account. Also, for the same time period, 76.3 percent of the
assessed contributions for the CY 1995 budget have been paid.
Both of these are higher percentages than international
organizations normally are able to collect, indicating a great
deal of support for this Convention.
Costs for a full-year of PREPCOM activities in 1996 are
budgeted at 55.3 million Dutch Guilders (approximately $33.5
million). Following is a presentation of the 1996 U.S. costs in
support of the CWC. Also presented are CW related costs which
occur whether or not there is a Chemical Weapons Convention.
8. Chemical weapons convention costs
[In millions of dollars]
------------------------------------------------------------------------
Fiscal year--
---------------------------------------
1993 1994 1995 1996
------------------------------------------------------------------------
CWC-related Costs:
State (CIO)................. NA NA NA \1\ 8.63
ACDA:
PrepCom/OPCW Assessment. 2.20 9.40 14.0 0.00
Admin/PrepCom Support... 2.24 0.98 1.00 1.00
Industry Outreach....... 0.20 0.20 0.30 0.00
ONA Requirements........ 0.00 0.25 0.96 0.00
---------------------------------------
Total................. 4.64 10.83 16.26 \2\ 1.00
=======================================
DOD:
OSIA.................... 11.09 17.74 25.36 26.28
Services................ 17.45 26.00 39.29 38.19
DNA (Verif. RDT&E)...... 21.65 18.96 17.60 12.61
---------------------------------------
Total................. 50.19 62.70 82.25 77.08
DOC 0 0 0.00 0.00
Industry.................... NA NA NA NA
Non-CWC dependent costs:
DOD:
Chemical stockpile
disposal program....... 533.60 503.80 851.30 670.00
CW stockpile maintenance 93.80 98.40 99.40 76.60
Defensive/protective
posture................ 576.20 584.16 508.60 453.50
------------------------------------------------------------------------
\1\ Amount in President's FY 97 budget request for FY 96. Final amount
under review pending determination of allocations received in FY 96
Omnibus CR Appropriation.
\2\ In addition, $5.84 of FY 94-95 carryover funds will be spent on
PrepCom/OPCW and ONA requirements.
9. The Chemical Weapons Convention Preparatory Commission
Concerns have been raised that the work of the CWC
Preparatory Commission (PrepCom) will undercut the CWC
verification regime. Questions were also asked about U.S.
influence over the PrepCom's work.
The CWC PrepCom is composed of states that sign the CWC.
Since February 1993, it has been in continuous session in The
Hague, the future headquarters site for the Organization for
the Prohibition of Chemical Weapons (OPCW), which will
implement the treaty after entry into force. The purpose of the
PrepCom is to carry out the necessary preparations for the
effective implementation of the CWC.
The PrepCom was tasked to develop very technical, detailed
implementing procedures as well as the staff structure of the
OPCW, financial and staff regulations and other administrative
requirements. PrepCom participants understand that the
Commission cannot revise the provisions of the Convention or
develop procedures that undercut or change the basic provisions
of the CWC. Therefore, the work of the PrepCom will not
substantively effect the CWC text; nor will the U.S. ability to
verify compliance with the CWC be affected to any greater or
lesser degree by the work of the PrepCom than by the provisions
of the CWC.
The PrepCom has established a provisional support
organization, known as the Provisional Technical Secretariat
(PTS), which is the predecessor of the administrative and
operational arm of the OPCW. Upon the approval of States
Parties, the PTS will become the Technical Secretariat of the
OPCW shortly after entry force of the Convention.
The PrepCom's Program of Work is designed to reach
decisions effectively on issues necessary for implementation of
the Convention. These issues are placed in two broad
categories. One covers the administration of the PrepCom, PTS
and future OPCW. The other includes all subjects related to the
CWC's verification regime and the provision of technological
cooperation and assistance. The PrepCom has made substantial
progress on many issues in each of these categories.
The PrepCom has discussed all major areas of the Convention
through a process of establishing groups of experts to focus on
specific issues. All decisions made thus far have been made by
consensus. The PrepCom has a voting mechanism for reaching
decisions when a consensus cannot be reached, but this has been
avoided in an effort to resolve issues to the satisfaction of
all members.
With regard to administrative matters, the PrepCom has
established rules of procedure, staff and financial regulations
for the PTS, and has signed an agreement with the Host
Government regarding privileges and immunities for PTS staff.
Progress has also been made on staff and financial regulations
for the OPCW and on an agreement with the Host Government
regarding privileges and immunities for the OPCW staff. Fifty-
nine professionals are currently on the PTS staff, six of which
are U.S. citizens, including the Head of the Administration
Division. Other U.S. citizens are in key positions on the
Executive Secretary's personal staff and in the Verification
Division.
With regard to verification, the PrepCom has, for example,
developed declaration formats, guidelines for equipment
procurement, inspector training requirements and programs, and
procedures regarding confidentially. The PrepCom has also made
progress in establishing the OPCW Laboratory and in developing
the OPCW information management system.
The United States is the most active delegation in the
PrepCom. Based on the extensive research and development work
done in the United States and experience gained through various
bilateral arms control agreements, the United States has
submitted technical and procedural papers on almost every
subject under discussion. The United States maintains a
permanent delegation to the PrepCom and rotates experts through
the delegation as they are needed. The United States has also
provided cost-free experts to the PTS staff to assist in their
internal administrative, long-range, and inspection planning.
The administration believes that U.S. ratification of the
CWC will provide an important impetus to the PrepCom's efforts
to prepare for entry into force of the Convention. U.S.
ratification will spark momentum internationally toward entry
into force and, by implication, more active participation by
CWC signatories in The Hague. This will help ensure that the
necessary administrative and verification procedures are ready
for approval and immediate implementation by the OPCW following
entry into force of the Convention.
10. The Organization for the Prohibition of Chemical Weapons
Responsibility for implementing the Chemical Weapons
Convention will rest with the Organization for the Prohibition
of Chemical Weapons, known as the OPCW. The CWC outlines the
structure of the OPCW and its bodies, and defines their
relationships, general operating procedures, and areas of
responsibility. The OPCW will come into existence upon entry
into force of the CWC and will be headquartered in The Hague.
The OPCW consists of three main bodies; the Conference of
States Parties (CSP), the Executive Council (EC), and the
Technical Secretariat (TS).
The CSP, consisting of all States Parties, is the
principal decisionmaking body of the Organization,
responsible for overseeing implementation of the
Convention and the activities of the EC and the TS. The
Conference of States Parties meets annually, unless it
decides otherwise. In addition, the CSP is to meet no
later than the end of the 6 and 11 year after entry
into force of the CWC, to review the operation of the
CWC regime. CSP responsibilities also include approving
the annual OPCW budget, deciding on the scale of
financial contributions, electing the members of the
EC, and dealing with concerns about compliance.
The EC serves as the executive body for the OPCW,
overseeing day-to-day activities. It is a political
body, consisting of 41 rotating members. Each of the
five regional groups is allocated a specific number of
seats. Representation takes into account whether State
Parties have a significant chemical industry. This
criterion, along with a Western Group political
agreement, essentially ensures the United States a
permanent seat. It also ensures that those States
Parties upon whose chemical industry the impact is
greatest will have an important role in the operation
of the CWC regime.
The TS consists of a chief administrator (the
Director General), inspectors and scientific, technical
and administrative personnel. The TS is responsible for
carrying out the verification provisions of the
Convention as well as related administrative functions.
B. SECURITY AND MILITARY IMPLICATIONS CONSIDERED IN RESOLUTION OF
RATIFICATION
1. Retaliatory capability
The Department of Defense, even though recognizing that the
CWC may not be universal or universally complied with, believes
that the ability to retaliate in kind is no longer a necessary
element in countering chemical weapons.
Fundamentally, DOD supports giving up the ability to
retaliate with CW because the United States has an effective
range of alternative retaliatory capabilities. U.S. chemical
protective capabilities continue to be improved, partly as a
result of the gulf war experiences. But the United States would
not rely on protection alone. For obvious reasons, the DOD does
not choose to specify in detail what responses the United
States would make to a chemical attack. However, as DOD stated
during the gulf war, if any country were foolish enough to use
chemical weapons against the United States the response will be
``absolutely overwhelming'' and ``devastating''. The United
States does not need chemical weapons to deliver an effective
response to a chemical attack.
General John Shalikashvilli, Chairman of the Joint Chiefs
of Staff, addressed this issue directly in testimony before the
Senate in August 1994. At that time, General Shalikashvilli
said:
The U.S. military's ability to deter chemical weapons
in a post CWC world will be predicated upon both a
robust chemical weapons defense capability, and the
ability to rapidly bring to bear superior and
overwhelming military force in retaliation against a
chemical attack * * * Desert Storm proved that
retaliation in kind is not required to deter the use of
chemical weapons.
Another nation's first use of chemical weapons against the
United States, its forces overseas, or its allies would be a
violation of customary international law. If a nation were to
join the Chemical Weapons Convention, development, stockpiles,
storage, and use of chemical weapons would be a violation of
international law.
The point has been made by administration officials that,
under customary international law as seen in the doctrine of
belligerent reprisal, the United States would be relieved from
certain international obligations in order to respond to a
chemical weapons attack. Essentially, the doctrine allows a
country to retaliate to an attack that is in violation of
international law in a manner that is appropriate,
proportionate and necessary to restore the status quo ante.
Accordingly, the doctrine of belligerent reprisal must not
be taken to mean that the United States will treat lightly
obligations and assurances provided to other nations that it
will not use nuclear weapons against them or threaten to do so,
most notably in protocols to the Treaty of Tlatelolco, the
South Pacific Nuclear-Free Zone Treaty, and the African
Nuclear-Free Zone Treaty. The United States has ratified the
protocols to Tlatelolco and signed the others.
Comparable assurances to the international community have
been the express policy of the United States in succeeding
years. The committee believes that it would be extremely
unfortunate if other nations were to conclude at this juncture
that the United States is in any way frivolous with regard to
its adherence to its commitments and obligations.
Forgoing an offensive chemical weapons capability allows
the United States to pursue, with strong international backing,
DOD's long-held goal of a complete ban, and eventually saves us
the cost and controversy that were associated increasingly with
maintaining a chemical stockpile for retaliation.
In his testimony before the Senate Foreign Relations
Committee, U.S. Secretary of Defense, William J. Perry, argued:
``we [the U.S. military] do not need chemical weapons to
provide an effective deterrent or to deliver an effective
response to the use of chemical weapons against our forces.''
U.S. Secretary of Defense, William J. Perry, added: ``U.S.
forces are equipped and trained to effectively and oppose an
aggressor armed with chemical weapons.''
U.S. Secretary of Defense, William J. Perry, continued:
``The Department of Defense will maintain a robust chemical
weapons defensive capability supported by aggressive
intelligence collection efforts. This commitment to protecting
our forces, combined with an ability rapidly to bring to bear
the overwhelming power of our military capabilities, will form
the backbone of military deterrence against any aggressor in
the CWC world. Nothing in the treaty restricts our activities
in this regard.''
In his testimony before the Senate Foreign Relations
Committee, Lt. General Wesley Clark, the Director of Strategic
Plans and Policy in the Office of the Chairman of the Joint
Chiefs maintained: ``banning chemical weapons is more important
to national and international security than the possible threat
of retaliatory use.''
Lt. General Wesley Clark, the Director of Strategic Plans
and Policy in the Office of the Chairman of the Joint Chiefs
added: ``The United States military's ability to deter chemical
weapons in a post-CWC world will be predicated upon a robust
chemical weapons defense and the ability to rapidly bring to
bear superior and overwhelming military force should chemical
use be initiated by an adversary. Our military demonstrated in
Desert Storm that retaliation in kind is not required to deter
the use of chemical weapons. U.S. forces are the best equipped
and trained forces in the world.''
Before the Senate Foreign Relations Committee, Dr. Brad
Roberts, a Member of the Research Staff at the Institute for
Defense Analysis, stated: ``For the kind of military threat
that remains, the U.S. does not need chemical weapons. They are
not helpful for either deterring or defeating the use of such
weapons against U.S. forces in the kinds of interstate wars
likely in the post-cold war era.''
2. Deterrence
Several civilian critics of the Convention have argued
against the philosophy of giving up the use of chemical weapons
for retaliatory purposes. These civilians argue that the threat
of potential U.S. use of chemical agents in a retaliatory
capacity serves as an important deterrent by creating
uncertainty in the mind of potential aggressors. They argue
that denying a retaliation-in-kind capability unfairly limits
the President's options to respond to a chemical attack.
In May 1991, President Bush stated that the United States
was ``formally forswearing the use of chemical weapons for any
reason, including retaliation, against any state, effective
when the Convention enters into force.'' General Shalikashvili
testified that this decision was based on the belief that
banning chemical weapons was more important for national
security than the benefits of the threat of retaliatory use. He
further testified that the ability of the U.S. military to
deter chemical weapons after the Convention enters into force:
* * * will be predicated upon both a robust chemical
weapons defense capability, and the ability to rapidly
bring to bear superior and overwhelming military force
in retaliation against a chemical attack. * * * while
the U.S. will forego [chemical weapon] retaliation in
kind upon the Convention's entry into force it still
retains a retaliatory capability second to none. Desert
Storm proved that retaliation in kind is not required
to deter the use of chemical weapons. Should deterrence
fail, a chemical attack against U.S. forces would be
regarded as an extremely grave action subject to an
appropriate non-chemical response of our choosing. As
was stated by Secretary Cheney during the Gulf War the
U.S. response to a chemical weapons attack would be
``absolutely overwhelming'' and ``devastating.''
Other Defense Department officials testified before the
Committee that the Department of Defense recognizes that the
Convention will not be universal in coverage or universally
complied with, at least at the beginning. But it believes that
the ability to retaliate with chemical weapons is no longer an
essential element in countering the possibility of possession
of chemical weapons by other States. * * * Fundamentally, the
Defense Department supports giving up the right to retaliate
with chemical weapons because we have an effective range of
alternative retaliatory capabilities.
Civilian critics argue that if the United States is
determined to give up retaliation-in-kind as a deterrent, it
would be better to do it unilaterally so that the decision
could be easily reversed if necessary. Yet this would entirely
undercut the purpose of the Convention which is to eliminate
chemical weapons for all time. Such a stance would also limit
the ability of the United States to encourage others to join
the Convention.
Matthew Meselson, of the Department of Biochemistry and
Molecular Biology at Harvard University, testified that a U.S.
Government interagency study concluded that like-for-like
deterrence ``does nothing to prevent proliferation and, if
anything, encourages it.'' He testified that it was on the
basis of this study that U.S. policy on using chemical and
biological weapons as a deterrent began to change.
Finally, then Director of Central Intelligence Woolsey
testified that in the CIA's judgment, the Convention would
serve a second type of deterrence purpose, that of discouraging
some nations which might otherwise have begun or maintained
chemical weapons programs from doing so. He argued that
countries that might have begun or continued a chemical weapons
program out of fear of a regional chemical weapons threat may
be reassured by potential adversaries' ratification of the
Convention and/or by the Convention's guarantees of
international assistance if they are threatened or attacked
with chemical weapons. He argued that other nations might
simply decide that the risks and costs of cheating outweigh the
marginal strategic advantage.
3. Defenses
What will the United States do to protect its troops? The
Department of Defense has made it clear that it will maintain a
robust chemical defense capability supported by aggressive
intelligence collection efforts. This commitment to protecting
U.S. forces combined with an ability to rapidly bring to bear
the overwhelming power of U.S. military capabilities will form
the backbone of military deterrence against any aggressor in
the post-CWC world.
The treaty recognizes the need for States Party to the
Convention to continue with CW defense programs. This right is
clearly and unambiguously provided in Article X of the
Convention--which states, ``Nothing in this Convention shall be
interpreted as impeding the right of any State Party to conduct
research into, develop, produce, acquire, transfer or use means
of protection against chemical weapons, for purposes not
prohibited under this Convention.'' Also Article II includes in
its definitions of purposes not prohibited the protection
against chemical weapons. The Convention also subjects these
programs to monitoring and verification which helps ensure that
such activities cannot be used to hide offensive programs. To
ensure that U.S. soldiers, sailors, airmen, and marines are the
best protected and best equipped fighting force for operations
on a nuclear, chemical or biological (NBC) battlefield, DOD has
developed a centralized management process that serves to
coordinate the Services requirements in these areas.
U.S. NBC defensive programs will continue in accordance
with the provisions of the treaty and the DOD will continue to
provide U.S. forces the best protection available. Nothing in
the treaty restricts U.S. activities in this regard.
General Shalikashvilli emphasized his view of the
importance of a robust chemical defense program:
* * * not only to protect U.S. forces but also to
ensure their combat effectiveness in a chemical
environment. A well trained and protected force is not
as vulnerable to a chemical weapons attack as a force
lacking these essential attributes. These factors would
naturally impact the decision of any would be aggressor
when contemplating the use of chemical weapons against
U.S. forces.
So long as the United States and its allies face
significant chemical warfare threats, it will be incumbent upon
the Government, including the Congress, to ensure that funding
for chemical defense programs remain at a realistic and
appropriate level.
4. Riot control agents
One of the more contentious areas of debate is that of riot
control agents. The Convention bans the use of riot control
agents as a ``method of warfare,'' but does not ban their use
for law enforcement purposes. The committee devoted
considerable time and attention to this issue, as it did in
1975 with regard to the ratification of the Geneva Protocol of
1925.
U.S. policy regarding the use of riot control agents is
currently governed by Executive Order 11850 which came as the
result of a 1975 agreement between the committee and the Ford
administration. The administration has stated that during
negotiations on the Convention, it tried to secure an
interpretation of riot control agents that would be consistent
with Executive Order 11850. Several countries, including
``key'' U.S. allies, opposed the United States on this issue
and negotiators were unable to get the U.S. position formally
adopted.
After the Convention was signed by President Bush, the
Clinton administration conducted an interagency review of the
riot control issue. The administration decided that the current
international interpretation of the phrase ``method of
warfare'' precludes two uses of riot control agents outlined in
Executive Order 11850. Those prohibited uses, both of which
involve situations in which combatants and noncombatants are
intermingled, are where civilians are used to screen attacks
and in rescuing downed aircrew. The Clinton administration has
stated that if the current international interpretation were to
change, U.S. policy could also change. The Administration has
also stated that it will issue a new Executive order outlining
the new policy upon receiving the Senate's advice and consent
to ratify the Convention.
The Convention's list of purposes that are not prohibited
specifically includes ``Military purposes not connected with
the use of chemical weapons and not dependent on the use of the
toxic properties of chemicals as a method of warfare'' and
``Law enforcement and domestic riot control'' Art.II(9). Thus,
the use of riot control agents is permitted for the following
uses deemed essential by the U.S. military: normal peacekeeping
operations, law enforcement operations, humanitarian and
disaster relief operations, counter-terrorist and hostage
rescue operations or noncombatant rescue operations. The
Convention also allows the use of riot control agents in riot
control situations in areas under direct U.S. military control,
including against rioting prisoners of war, and to protect
convoys from civil disturbances, terrorists and paramilitary
organizations in rear areas outside the zone of immediate
combat.
In a response to a question for the record, Chairman
Shalikashvili said that, although he and the Joint Chiefs
believe that several arguments can be made for using riot
control agents in all cases permitted by Executive Order 11850,
they
* * * also recognize that a unilateral U.S. decision
to adopt this position could cause serious divisions
with key allies whose cooperation is essential to
effective implementation of the [Convention.]
Accordingly, the Joint Chiefs decided that the
benefits of the [Convention] outweighed the importance
of preserving the ability to use riot control agents in
the prohibited cases, and that they would support the
consensus reached within the Administration on the
[riot control agents] issue.
The claim that riot control agents are exempt from all
parts of the Convention except its prohibition against actual
use as a method of warfare is incorrect, unnecessary, and
dangerous to U.S. security.
Riot control agents are not exempt. The status of riot
control agents is clearly spelled out in Article II of the
Convention. They are defined as ``Any chemical not listed in a
schedule, which can produce rapidly in humans sensory
irritations or disabling physical effects which disappear
within a short time following termination of exposure.'' Art.
II(7).
This would include, for example, the widely used irritant
CS and also, if present development programs succeed, powerful
narcotic-like (opioid) chemicals intended to cause temporary
paralysis and other chemicals intended to cause temporary
disorientation.
Every riot control agent, as defined above, is also a
``toxic chemical,'' defined in the Convention as ``Any chemical
which through its chemical action on life processes can cause
death, temporary incapacitation or permanent harm to humans or
animals.'' Art. II(2).
The Convention's definition of ``chemical weapons,'' to
which its prohibitions of development, possession, and transfer
apply, is ``Toxic chemicals and their precursors, except where
intended for purposes not prohibited under this Convention, as
long as the types and quantities are consistent with such
purposes.'' Art.II(1).
It follows that the status of riot control agents, like any
other toxic chemicals and munitions designed for their delivery
depends on their intended purpose, so long as their types and
quantities are consistent with such purpose.
The Convention's definition of chemical weapons, based on
purpose rather than on the chemical identity of a substance,
underlies the entire Convention. It enables the Convention to
deal with dual-use chemicals and with chemicals that have not
yet been discovered, protecting peaceful uses and accommodating
the inevitable advance of science.
The specific inclusion of ``law enforcement including
domestic riot control purposes'' in the list of purposes
permitted by the Convention underscores the fact that riot
control agents are subject to the same definition of chemical
weapons as all other toxic chemicals.
5. Russia and cheating
The committee had several questions regarding Russian
compliance and reports of continued Russian clandestine
chemical weapons activities. Specifically, the committee was
concerned with allegations made by the Russian scientist, Dr.
Vil Mirzayanov, that the Russians had continued to develop and
store binary chemical weapons and that loopholes in the treaty
would allow the Russians (or anyone else) to continue
developing new chemical agents. The committee was also
concerned with Russia's ability to meet its obligation under
the Convention to destroy its chemical weapons stockpile within
10 years after the Convention enters into force.
Charges that a new generation of nerve agents has been
developed and that Russia has been covertly disposing of
chemical weapons are deeply disturbing. The Russian government
must satisfactorily answer those allegations. Also, it must
remove carryovers from the Soviet era that may be responsible
for these activities and infuse its chemical weapons
destruction program with a sense of purpose by appointing
officials who are committed to chemical disarmament and have
the authority to make difficult decisions. For its part, the
Convention can be an impetus to keep Russia headed down the
path toward chemical weapons disarmament. Without the
Convention, the United States and the West will not have the
verification tools needed to clarify matters such as those
currently in question. The Convention, in short, can provide
additional leverage to induce accountability on the part of the
Russian government.
In an article published in October 1995, Russian scientist
Vil Mirzayanov stated: ``To the best of my knowledge, the
development, testing and production of chemical weapons has
stopped in Russia, partly because of * * * economic
circumstances and partly as a result of the attention I drew to
the situation.'' Mirzayanov went on to emphasize that, contrary
to his initial assessment, he now understood ``that the CWC
provides the means to bring the Russian chemical weapons
complex under international monitoring.'' Mirzayanov concluded
that ``the key to confronting all these [chemical weapons]
problems lies in the CWC; there is no time to waste in
ratifying and implementing this important treaty.''
In response to questions for the record, ACDA stated that
the U.S. government has ``voiced its concerns to the highest
levels of the Russian government * * *'' and that the U.S.
Government expects the Russians to clarify the nature of their
chemical activities and to ``adhere to the spirit of the
agreements'' even though they are not in force yet. The
administration also promised to submit a report to the
committee on Russian compliance with existing bilateral
chemical and biological weapons agreements. The United States
has also stressed to the Russian Government that it expects
Russia to clarify the nature of its chemical weapons activists
and to adhere to the spirit of the agreements it has signed
banning development and production of such weapons, even though
they are not yet in force.
On its part, the Russian Government committed to
ratification of the CWC as rapidly as possible and its entry
into force at the earliest possible date at the 1994 Moscow
Summit. As part of its commitment to early ratification, the
Duma began hearings on the CWC on March 24, 1994. President
Yeltsin reaffirmed Russia's commitment to CWC ratification in a
meeting with the U.N. Secretary General in October 1995.
As far as ``loop holes'' are concerned, Mirzayanov's claims
are mistaken. In fact, the Convention does provide for the
schedules to be amended and the definition of ``chemical
weapons'' was specifically written to include unknown or future
chemicals of concern. States Parties are required to make
declarations in detail of any chemicals that meet the
Convention's definition of chemical weapons, whether those
chemicals are listed on the Schedules or not. The Schedules
themselves are designed to be open-ended, not a final,
definitive list. Thus the Convention is designed to grow with
scientific developments and the declaration and inspection
provisions of the Convention cover almost every aspect of a
chemical weapons program. Moreover, States Parties have the
right to request a challenge inspection of any location or
facility located in any place under the jurisdiction or control
of any other State Party if they have cause to believe illicit
chemical activities are being conducted there, whether the
location or facility was declared or not. Thus if the United
States, or any other State Party, has reason to suspect that
the Russians are developing new chemical weapons, a challenge
inspection can be requested.
In October 1995, Vil Mirzayanov acknowledged that his
claims regarding the CWC were in fact mistaken:
Initially, I too objected to the CWC, which I
assessed as being inadequate for the task of
eliminating chemical weapons * * * What I did not
understand when I first spoke out on these issues is
that the CWC's negotiators build flexibility into the
CWC to permit it to adapt to new scientific and
technical developments. This adaptability was prudent
because science does not stand still. The treaty
contains provisions to permit additions to the list of
banned and controlled chemicals and to improve
inspection techniques and technologies to keep pace
with such developments.''
The CWC is clear with regard to obligations regarding
chemical weapons. A State Party is required to declare in
detail all chemical weapons it owns or possesses as well as any
other chemical weapons located in any place under its
jurisdiction or control. It must also provide inspectors access
to such weapons for initial inspection to verify the
declarations, routine inspections of storage until destruction,
and monitoring of actual destruction.
States Parties must make declarations on chemicals that
meet the CWC definition of chemical weapons, whether or not
such chemicals are listed in the Schedules of chemicals
contained in the Convention. The Schedules of chemicals in the
CWC are not intended to be exclusive, but open-ended.
The operative provision for CWC coverage of chemicals of
concern is the definition of chemical weapons. This definition
was designed to facilitate verifications and to preclude
loopholes with regard to unknown or future chemicals of
possible concern. Thus, ``chemical weapons'' applies, inter
alia, to ``toxic chemicals and their precursors, except where
intended for purposes not prohibited under this Convention, as
long as the types and quantities are consistent with such
purposes.'' A toxic chemical is defined as ``any chemical which
through its chemical action on life processes can cause death,
temporary incapacitation or permanent harm to humans or
animals. This includes all such chemicals, regardless of their
origin or their method of production, and regardless of whether
they are produced in facilities, in munitions [e.g. binary] or
elsewhere.'' Nonprohibited purposes specified in the CWC are:
``(a) industrial, agricultural, research, medical,
pharmaceutical or other peaceful purposes; (b) protective
purposes, namely those purposes directly related to protection
against toxic chemicals and to protection against chemical
weapons; (c) military purposes not connected with the use of
chemical weapons and not dependent on the use of the toxic
properties of chemicals as a method of warfare; and (d) law
enforcement including domestic riot control purposes.''
The definition of chemical weapons, in particular, which
allows for use of toxic chemicals for nonprohibited purposes
``as long as the types and quantities are consistent with such
purposes,'' is intended to provide the basis for inspectors to
question findings of chemicals which seem to be inconsistent
with their use for nonprohibited purposes. In other words,
States Parties must be able to justify the types and quantities
of such chemicals or face suspicion and potential follow-on
action from the CWC organization.
A further note of explanation on the open-ended schedule of
chemicals may be useful. The Annex on Chemicals contained in
the CWC contains three categories of treaty controlled
chemicals (designated Schedules 1, 2, and 3 in decreasing order
of perceived risk) based, inter alia, on the toxicity of the
chemicals, whether they have been stockpiled as chemical
weapons, their potential role in the production of chemical
weapons, and the degree to which they are used in industry.
This Annex also provides criteria to be taken into account in
future placement or rearrangement of chemicals on the
schedules. To allow for potential future chemicals of concern,
the Annex is flexible, permitting additions or changes without
a formal amendment process.
The obligations of the CWC will require States Parties to
make detailed declarations on chemical weapon-relevant
facilities and activities, subject declared facilities to
routine inspection and subject all facilities and locations to
challenge inspections. Thus the CWC will put Russian activities
under international scrutiny and provide the international
community with mechanisms to respond to noncompliant action
with punitive measures or possible sanctions.
At the January 1994 summit, Russia signed the
implementation documents for Phase II of the 1989 Wyoming
Memorandum of Understanding [MOU]. This new phase committed the
United States and Russia to a very detailed data exchange on
chemical weapons stocks and facilities, followed by on-site
inspections of five declared facilities in their respective
countries.
The Russians provided their Phase II data in the spring of
1994. After receipt of the Russian data, the United States
submitted questions to the Russians asking for clarification of
their data declaration. Russian answers provided some
clarification of the Russian data, although several key
questions and concerns were not resolved.
Between August and December 1994, the United States
conducted five MOU-mandated inspections in the Russian
Federation, three of which were challenge inspections. These
inspections were carried out at three Russian chemical weapons
storage facilities, one Russian chemical weapons production
facility, and one Russian chemical weapons development
facility.
The administration believes that the Wyoming MOU has
provided valuable practical experience which will be useful in
implementing the CWC. This applies to the declaration and
inspection of both chemical weapons and chemical weapons-
related facilities. As a consequence of the MOU, Russia and the
United States have identified and resolved numerous practical
problems that could arise during implementation of the
Convention. Indeed, the two sides have based several of their
recommendations at the CWC Preparatory Commission on the
Wyoming MOU experience. This includes, for example, the
development of standardized formats for declarations on
chemical weapons and chemical weapons-related facilities.
Although many issues that have arisen during MOU
implementation have been resolved successfully, the United
States and Russia are continuing to discuss several MOU issues.
The administration acknowledges that Russian implementation of
the MOU has been problematic. The United States believes that
this can be explained, in part, by substantive differences
within the Russian interagency process over how to handle their
data declaration. In addition, the 1994 firing of Anatoliy
Kuntsevich, former Chairman of the President's Committee on
Convention-related Problems of Chemical and Biological Weapons,
left a vacuum, creating a certain amount of confusion within
the Russian government regarding chemical weapons policy.
The administration has had and continues to have an ongoing
dialog at high levels of the Russian Government on Wyoming MOU
issues. Senior U.S. officials continue to discuss Russian
implementation of the Wyoming MOU with various senior-level
Russian officials. Moreover, President Yeltsin has agreed on
the importance of resolving outstanding issues related to
implementation of the MOU. U.S. officials believe that their
dialog with the Russians has helped resolve a number of MOU
issues, and that continuing that dialog offers the best
opportunity for resolving those issues that remain.
Obtaining more detailed data about Russian stockpiles is
one of the objectives of Phase II of the 1989 MOU. The United
States provided the Russians with our data and we have now
received all of the Russian's Phase II data. The United States
is in the process of translating and analyzing this data. If
the United States detects discrepancies in Russian
declarations, these discrepancies will be pursued with the
Russian Federation. U.S. officials believe that a continuing
dialog with the Russian Federation offers the best opportunity
to resolve any such discrepancies.
The implementing documents for the June 1990 ``Agreement on
the Destruction and Non-Production of Chemical Weapons and
Measures to Facilitate and Multilateral Chemical Weapons
Convention'' (known as the Bilateral Destruction Agreement or
BDA) have yet to be agreed by Russia. As a consequence, the BDA
is not yet in force. Key remaining issues with the BDA concern
the conversion of their former chemical weapon production
facilities to permitted commercial use. The ongoing dialog with
Russia makes clear that any chemical weapon production
facilities which are to be converted are to be done so in
accordance with CWC provisions. Additionally, if a State
Party's request to the CWC organization for approval of convert
facilities is approved, such facilities will be restricted in
their chemical activities and subject to very stringent
verification.
It should be noted that the administration strongly
supports ratification of the CWC, even if the BDA is not yet in
force. The BDA is important in its own right and the United
States is continuing to work to resolve Russian concerns
regarding its provisions on conversion. However, the BDA is
less relevant that it was four years ago, when the United
States believed the CWC to be years away. The purpose of the
BDA, at that time, was to commit Russia to chemical weapon
destruction as early as possible and to facilitate progress on
the CWC. Unlike the CWC, the BDA does not require total
destruction of chemical weapon stocks nor provide an
international process for resolving compliance concerns. The
United States is also concerned about the acquisition and
potential use of chemical weapons by other countries as well as
Russia and believes the CWC should not be delayed.
In anticipation of the BDA, the CWC specifically provides
for such bilateral agreements to operate under the CWC, as long
as their provisions are consistent with the CWC. The BDA is
expected to meet this criteria, since relevant CWC provisions
were drawn from the BDA and the BDA implementing documents were
completed after the CWC was finished and signed.
As far as chemical weapon destruction is concerned, U.S.
insistence, first in the U.S./Soviet BDA of 1990 and later in
the CWC, that destruction of chemical weapons stocks be done in
a safe and environmentally sound manner has contributed to
grassroots political process of ``NIMBY''--``not in my
backyard'' which has complicated agreement on a Russian
chemical weapons destruction plan but also complicates a return
of the old system.
The administration believes that Russia will have trouble
meeting the 10 year destruction deadline. The Russians made it
clear to the United States during the final months of chemical
negotiations in the Conference on Disarmament that this might
be the case. Therefore, the Convention contains provisions that
allow for a State Party to request and have approved under
certain conditions, an extension of the destruction period of
up to five years. Additionally, the United States has started
cooperation programs to help the Russians complete the
destruction process within the Convention's time frames.
Several Senators have recognized the effect that Russia's
internal turmoil is having on its ability to carry out its arms
control commitments. They have spearheaded the development of a
policy of cooperative threat reduction that seeks to increase
U.S. security by constructively addressing the problems
presented by Russia's weapons of mass destruction. However, the
bulk of the Nunn-Lugar funds has been earmarked for nuclear
arms. Using the same carrot-and-stick approach followed in the
nuclear sphere, the United States should redouble its efforts
to assist the Russia chemical weapons destruction program. This
argument would hold true even if the Convention were not before
the Senate for its advice and consent to ratification.
The administration is working with the Russian Government
in a number of areas to help them establish a realistic,
executable CW destruction program. The United States has thus
far identified $55 million for this assistance, selected the
Bechtel Corporation to help the Russians develop a
Comprehensive Implementation Plan (CIP), and is setting up a
Central Analytical Laboratory (CAL) to process environmental
samples, provide training, and perform other essential chemical
weapon destruction functions.
Subject to Congressional approval and funding, U.S.
assistance is expected to transition from planning and
preparation support to assistance directly supporting the
design, construction, and equipping of Russia's first nerve
agent filled munitions destruction facility. During 1995,
Russia and the United States moved forward with the Joint
Evaluation Project, a technical evaluation of the Russian two-
step (neutralization/bituminization) chemical destruction
process. During the first phase, which was successfully
completed in a U.S. laboratory using U.S. nerve agent, the
Russian process was found to be 99.9999 effective against
sarin, soman and VX. The second phase is now proceeding in a
Russian laboratory, using actual Russian munitions grade agent.
Also during 1995, a series of executive-level U.S.-Russian
meetings were held to better define United States and Russian
roles and responsibilities as well as to clarify the scope and
form of possible future U.S. assistance. As a result of these
discussions, a decision was made to narrow the scope of the CIP
to a single site specific implementation plan for the
Shchuch'ye site. It is anticipated that the Shchuch'ye
Feasibility Study and CIP will serve as a model for the
remaining nerve agent munitions storage sites in Russia. Other
U.S.-Russian discussions have focused on a master schedule for
the entire Russian destruction program out to the year 2001,
and the CAL. DOD also moved forward in procuring three mobile
analytical laboratories that will provide Russia the ability to
conduct chemical agent monitoring at chemical weapons storage
sites and chemical weapon destruction sites.
During the past year, Russia has taken a number of steps to
facilitate progress toward destruction of its chemical weapons.
In 1995, President Yeltsin signed a Presidential decree which,
inter alia, directed that CW destruction would occur within the
republics in which the weapons were stored; an interagency
commission for chemical weapons destruction headed by the
President's national security advisor was established; the
President's Committee (PC) was designated overall coordinator
for the Russian CW destruction program; the Ministry of Defense
was designated executive agent for CW destruction; Shchuch'ye
was selected as the location for Russia's first nerve-agent
destruction facility; and, the Moscow State Scientific Research
Institute of Organic Chemistry and Technology (GosNIOKhT) was
selected as the location for the Central Analytical Laboratory.
Also during 1995, the President's Committee submitted a
draft plan to the government establishing a framework to speed
preparations for Russian chemical weapons destruction; a
separate line item for chemical weapons destruction was
established in the government's budget; and, a protocol was
signed between Kurgan officials and the Ministry of Defense to
begin the site selection process for the Shchuch'ye destruction
facility. The signing of the protocol provides MOD approval to
begin in earnest preparations for the construction of the pilot
chemical weapons destruction facility. These developments are
clear indications of increased Russian awareness of, and
preparations for, meeting its chemical weapons destruction
obligations under the CWC.
The Russian Government has formally stated its commitment
to become a Party to the CWC, as recently as July 22 at the
Plenary meeting of the CWC Preparatory Commission. Russia
announced that it is seeking the speedy submission of the
Convention to the Russian parliament for ratification.
In the administration's view, the Russians have also
reflected concern about being left behind. The administration
believes that the best way to promote Russian ratification is
to proceed with our own ratification, as all our major NATO
allies have done, and to bring the CWC into force as soon as
possible, while at the same time trying to address Russian
concerns in a manner consistent with our own interests.
Although Russian officials recently stated they believe the
bilateral agreements have fulfilled their useful role, which,
in large part, paved the way for the successful conclusion of
the CWC, they have also assured the administration that they
will not renege on the agreements they have made. The
administration continues to press Russia at the highest levels
on the need to resolve all outstanding CW issues. It was agreed
at the Gore-Chernomyrdin Commission meeting in July to have a
special group address CW issues. ACDA Director John Holum is
head of the U.S. side and Yuri Baturin, head of the
Interdepartmental Commission on Chemical Disarmament (ICCD), is
head of the Russian side. The Russians have also agreed to host
a visit to Volgograd to address specifically the issue of
conversion of CW production facilities.
Secretary of State Christopher argued before the Senate
Foreign Relations Committee that: ``Ratification of this
Convention not only represents a remarkable opportunity to
strength our own security, it denies us no option that we would
ever wish to exercise. With the dramatic changes of the past
decade, the threat of a massive chemical attack from the
nations of the former Soviet Union has been drastically
reduced. Under American law, the United States is already
required to destroy the vast majority of our chemical weapons
stockpile by 2003. By imposing an international legal
obligation to destroy chemical weapons, the Chemical Weapons
Convention puts all other states capable of deploying chemical
weapons--including Russia--on the same footing as we are.''
Secretary of State Christopher added: ``By ratifying the
Convention, we will add the force and weight of the entire
international community to our efforts to assure the
destruction of Russian chemical stocks. Our action will also
spur other nations such as China to ratify and joining the
regime.''
In his testimony before the Senate Foreign Relations
Committee, Mr. Michael Moodie, President of the Chemical and
Biological Arms Control Institute, said: ``ratifying the
Convention [puts] pressure on Moscow--provides us more
leverage. Until the United States acts, hardliners in Moscow
will feel no pressure to do anything, and are free to postpone
action indefinitely. Unless we act, we give nothing to those in
Russia, such as President Yeltsin, who have publicly committed
Russia to implementing the Convention.''
6. Non-lethal weapons development.
The administration indicated that the Convention does not
restrict nonlethal weapons ``that exert their effects by
nonchemical means.'' The Convention's definition of chemical
weapons is ``toxic chemicals and their precursors, except where
intended for purposes not prohibited under this Convention, as
long as the types and quantities are consistent with such
purposes.'' Toxic chemicals themselves are defined as ``any
chemical which through its chemical action on life processes
can cause death, temporary incapacitation, or permanent harm to
humans or animals.'' The development of nonlethal weapons which
function on their physical properties, such as stickiness or
slipperiness, and not through chemical action on life
processes, will not be prevented by the Convention. The
administration has made clear that it will ensure that any
nonlethal programs it undertakes are in conformity with U.S.
treaty obligations, including those under the CWC.
Moreover, in the committee's judgment, the United States
would be well advised to explore vigorously the workability and
applicability of various kinds of nonlethal weapons and
devices. Considerable research has been done with regard to the
value of nonlethal equipment and materials to meet various
military objectives. Developments in recent years appear
promising. The committee believes the President should give
high priority to the development of nonchemical, nonlethal
alternatives to riot control agents in military situations in
which combatants and noncombatants are intermingled.
7. Protecting national security information
Can the United States protect the privacy of our people and
businesses, and our national security information and
industrial technology, from compromise through the CWC's
verification system? Within the Convention, the intrusiveness
of many of the verification provisions had to be balanced
against legitimate national security, and Constitutional
concerns. Also, the transparency called for in the declaration
and verification regimes had to be balanced with the need to
protect national security information. In DOD's view, the
balance between effective verification of the Convention and
the protection of DOD's national security concerns has been
achieved.
Safeguards are provided against frivolous inspection
demands. An inspection team must strictly observe its
inspection mandate. The team is not allowed to collect or
retain information that is not related or relevant to the
object and purpose of the Convention. Many of the declared
facilities that are subject to routine inspection will
negotiate facility agreements. Consistent with the CWC, these
agreements will address in detail the degree of access, the
scope of information provided and any sample taking or
monitoring that is to be conducted at the particular
facilities.
These protections apply particularly to challenge
inspections. Under a challenge inspection, a State is allowed
up to 120 hours from the time it is notified of an inspection
until it must provide access to the requested inspection site.
During this time, the inspected state and inspection team
negotiate the nature and extent of access within the inspection
site. The inspected State also, as stated in the Convention, ``
* * * has the right under managed access to take such measures
as are necessary to protect national security.'' Such measures
could include but are not limited to shrouding, removing
sensitive papers from the area, or restricting sample analysis.
The inspected State may also take into account, ``any
constitutional obligations it may have with regard to
proprietary rights or searches and seizures.'' These powerful
protections are balanced with the obligation not to use them to
evade compliance. Accordingly, if a State provides less than
full access it must `` * * * make every reasonable effort to
provide alternative means to clarify the possible non-
compliance concern * * * ''
It is quite possible that Department of Defense facilities,
both government sites and civilian plants with DOD contracts,
could be challenged under the CWC. In such cases, DOD has the
ability to inform officials those sites quickly and to prepare
them properly for inspection through the Defense Treaty
Inspection Readiness Program (DTIRP), which is managed by the
On-Site Inspection Agency (OSIA).
Escort teams provided by OSIA will accompany the
international CWC inspection teams to DOD-related facilities
for the duration of their stay on U.S. territory. OSIA
personnel have experience from other treaties and the agency is
fully staffed with linguists and treaty experts who will ensure
that officials from the inspected DOD facility are fully
cognizant of the rights and obligations mandated by the CWC.
In the event of a challenge inspection, DoD feels that the
provisions for negotiated or ``managed access,'' which have
been crafted into the CWC by U.S. negotiators will enable
inspected facilities to satisfy any concerns about treaty
compliance while simultaneously ensuring that U.S. national
security is not jeopardized or compromised in any way. Managed
access will give officials at the challenged site the right to
offer reasonable alternatives to full access and to negotiate
levels of access in areas which may contain classified or
proprietary information not related to the CWC.
Like DOD, industry was closely involved in developing plans
for compliance. Given this background, the Administration
believes the risk of industrial espionage and compromise of
national security information is very small.
8. The impact on anti-terrorism efforts
The U.S. Government's antiterrorism efforts must include
prohibiting terrorists from acquiring weapons of mass
destruction.
The cowardly act in Atlanta during this summer's Olympic
games reminded us once again that the United States is not
immune to terrorism and that it must be the leader in the
international fight against terrorism. Our effort must include
doing everything we can to meet one of the most urgent emerging
threats to the national security of the U.S.--future terrorist
attacks which involve weapons of mass destruction.
In this regard, the CWC is a useful and readily available
tool in the fight against terrorism. Together with the
implementing legislation, required of every party, the CWC will
serve as a major deterrent against chemical terrorism, where
for the first time in many countries, the production and
possession of chemical weapons will be a crime.
The Chemical Weapons Convention is both an arms control and
nonproliferation treaty. The CWC bans the development,
production, acquisition, stockpiling, retention, transfer and
use of chemical weapons. Although the CWC was not designed to
prevent chemical terrorism, certain aspects of the Convention,
including its law enforcement requirements and nonproliferation
provisions, will strengthen existing efforts to fight chemical
terrorism.
If the CWC were in force today, it would be both more
difficult and more costly for terrorists to acquire or use
chemical weapons.
One of the key tools in combating terrorism is early
intelligence. The CWC will provide access to international
declaration and inspection information and will strengthen the
intelligence links between the United States and the
international community that will help us detect and prevent
chemical attacks.
Furthermore, implementing legislation required by the CWC
will enhance our authority to investigate and prosecute CW-
related activities. The implementing legislation will broaden
this authority to include development, production, transfer or
acquisition of a chemical weapons agent. Under current law, our
law enforcement authorities investigate on the basis of
suspicion of conspiracy to use a chemical weapon. The CWC
implementing legislation will, consequently, improve the
prospects for detection, and early prosecution.
Moreover, the significant penalties that will be imposed on
any person who knowingly engages in this broader range of
prohibited CW-related activities will aid in deterring criminal
activities.
The CWC also requires parties to eliminate their CW
stockpiles and to control transfers of certain dual-use
chemicals that can be used to make chemical weapons. This will
help deny terrorists easy access to chemical weapons.
Japan serves as an example of the importance of this treaty
and its implementing legislation in combating the terrorist
threat. Within 10 days of the poison gas attacks in the Tokyo
subways, the Japanese launched the effort to ratify the CWC by
enacting the CWC implementing legislation. The Japanese
completed ratification of the CWC a month later.
Law enforcement benefits
Implementing legislation required by the CWC will
strengthen legal authority to investigate and prosecute
violations of the treaty. It will also make the public more
aware of the threat of chemical weapons and of the fact that
the acquisition of such weapons is illegal.
Investigation. For example, the proposed U.S. implementing
legislation contains the clearest, most comprehensive and
internationally recognized definition of a chemical weapon
available. It is far more precise than the term ``poison gas''
contained in Title 18 of the Criminal Code. The definition
contained in the implementing legislation will enable an
investigator to request a search warrant on the basis of
suspicion of illegal chemical weapons activity (such as
production of chemical agent), rather than suspicion of
conspiracy to use a weapon of mass destruction, as under
current U.S. law. By providing law enforcement officials and
prosecutors a more precise legal basis for investigating the
development, production, transfer or acquisition of chemical
weapons. CWC implementing legislation improves prospects for
detection, early prosecution and possibly even prevention of
chemical terrorism in the U.S.
Prosecution. The proposed U.S. implementing legislation
will also aid prosecution. Because possession of a chemical
weapon (whether or not it is intended to be used) would be a
violation of the Convention, it would also be illegal under the
CWC implementing legislation and thus a sufficient basis for
prosecution. In contrast, under existing U.S. legislation,
possession of a chemical device that could produce poison gas
without the use of explosives or a detonator might not offer
sufficient grounds for prosecution. In this case, prosecutors
would have to rely on legislation intended for other purposes,
such as a law against conspiracy to use a weapon of mass
destruction.
Penalties. Under the proposed U.S. implementing legislation
any person who knowingly engaged in prohibited CW-related
activities short of actual use of a chemical weapon could be
subject to the maximum punishment of life in prison or any term
of years. In contrast, existing U.S. legislation would require
proof of involvement in an attempt or conspiracy to use poison
gas; these criteria are much less precise and thus more
difficult to fulfill than those in the implementing
legislation.
Trade Controls. Proposed U.S. implementing legislation
would also supplement existing export/import control laws and
regulations by strictly controlling the import and export of
those chemicals posing the greatest risk (listed in Schedule 1
of the CWC) and also regulating the production, acquisition,
retention, transfer or use of such chemicals within the U.S.
Fines of up to $50,000 could be imposed for unlawful
production, acquisition, transfer, etc. of such chemicals.
Emergency Authorities. The proposed U.S. implementing
legislation contains authority to seize, forfeit, and destroy
chemical weapons. This important provision protects the
constitutional rights of property owners while allowing law
enforcement officials to seize and destroy a chemical weapon
under exigent circumstances (i.e. where harm is imminent or
likely). This provides additional authority to prevent a
potential catastrophe and save lives.
Public Awareness. Finally tips by concerned private
citizens are the lifeblood of successful police investigations.
Enactment of the CWC and its implementing legislation will
ensure, due to reporting and inspection requirements and
penalties for violations, that private companies and concerned
citizens are more alert to and more likely to report any
suspected chemical weapons-related activities.
Nonproliferation benefits
Nonproliferation provisions of the CWC will deny terrorists
easy access to chemical weapons by requiring Parties to
eliminate national stockpiles and by controlling transfers of
certain chemicals that can be used to make chemical weapons. In
particular, the CWC requires Parties to cease transfers of
certain CW agents and CW precursor chemicals to non-Parties and
restrict such transfers to Parties. In addition, reporting is
required on anticipated production levels of all listed
chemicals and anticipated imports and exports of Schedule 1 and
2 chemicals. These measures will help restrict access to key
chemicals, while also helping to alert law enforcement and
other government officials to suspicious activities.
C. COMMERCIAL CONSIDERATIONS
1. Constitutional issues
Several questions were raised regarding how U.S. citizens'
Fourth Amendment (protection against unreasonable search and
seizure) and Fifth Amendment (self-incrimination) rights would
be affected by the Convention's inspection provisions.
In an answer to a question for the record, the
administration stated that both the routine and the challenge
inspections of private facilities will be initiated on the
basis of consent. However, in the presumably rare case in
which, consent is denied, most inspections would then be
conducted using search warrants obtained on the basis of
administrative probable cause, i.e., the Government
demonstrates that the facility fits within a reasonable
legislatively mandated inspection scheme. This is the procedure
used in similar inspections pursuant to domestic legislation,
such as toxic substance emissions. Some inspections of
facilities that produce Schedule 1 chemicals may be conducted
without any warrants, but those inspections will comply with
the conditions of the Supreme Court exception to the warrant
requirement of inspections of ``pervasively regulated
industries.''
The United States expects to conduct challenge inspections
of other private facilities pursuant to administrative search
warrants in order to ``allow the greatest degree of access,''
as required by the Convention. But the U.S. negotiated the
addition of a corollary right to ``take into account any
constitutional obligations it may have with regard to * * *
searches and seizures'' in relation to the Convention's
challenge inspections. Thus, the U.S. will not be in violation
of the Convention if access is limited or severely restricted
because it proved impossible to obtain that access in a
constitutionally permissible manner. This specific right to
take constitutional obligations into account regarding searches
and seizures also applies to routine inspections of ``other
chemical production facilities,'' since the rules for routine
inspections of these facilities incorporate this right by
reference.
Regarding Fifth Amendment rights, the Administration stated
that:
The Fifth Amendment rights of personnel at U.S.
facilities subject to inspection are also protected.
While the [Convention's] Verification Annex provides
that inspectors have the right to interview any
facility personnel in the presence of representatives
of the inspected State Party the [Convention] does not
require that facility personnel answer the inspectors'
questions, and therefore their Fifth Amendment rights
are protected. The Administration's proposed draft
[Convention] implementing legislation does provide for
the issuance of a subpoena to require testimony of a
witness and provisions of answers in order to meet the
U.S. Governments' obligations under the [Convention.]
However, the proposed legislation contains no
provisions for compelling facility personnel to be
interviewed or to provide answers to inspectors'
questions.
In addition to the constitutional difficulties, some
companies also fear the potential loss of trade secrets through
espionage or inadvertent leaks. Industry will also be affected
by the Convention requirement that civilian industries report
production, stockpiles and transfers of controlled chemicals,
and by Convention restrictions on the export of controlled
chemicals and technology to non-signatories.
The Chemical Manufacturers Associations (CMA), the
Synthetic Organic Chemical Manufacturers Association (SOCMA),
the Pharmaceutical Research and Manufacturers of America
(PhRMA), the Biotechnology Industry Organization (BIO), the
American Chemical Society (ACS), and other trade associations
representing the international chemical industry were active
participants in developing provisions to protect confidential
business information during the treaty negotiations. The
Convention contains several provisions to protect against the
loss of proprietary information, namely Article VI (Activities
Not Prohibited Under the Convention) and its related parts in
the Verification Annex (Part II: General Rules of Verification,
Part III: General Provisions for Verification Measures Pursuant
to Articles IV, V and VI, Parts VI-VIII: Regimes for
Declarations, Inspections and Transfers of Schedules 1, 2 and
3, respectively, and Part IX: Regime for Declaration and
Verification of Other Chemical Production Facilities).
Additionally, certain provisions in Article IX and the
Verification Annex Part X on challenge inspections provide
protection against loss of sensitive non-chemical weapons
related information. Finally, the Annex on the Protection of
Confidential Information, the ``Confidentiality Annex'',
stipulates the treatment of confidential information, relevant
aspects of employment and conduct of personnel, measures to
protect sensitive installations and to prevent unauthorized
disclosure of data during on-site inspections, and procedures
in case of breaches or suspected breaches of confidentiality.
These provisions are for both routine and challenge
inspections.
During routine inspections, confidential business
information can be safeguarded first through the facility's
opportunity to have a facility agreement negotiated with the
Organization specifying the type of access and the information
to be collected. Plant officials do not have to grant the
inspection team access to commercially sensitive areas
unrelated to the Convention or to data that do not directly
affect verification. Information that is not within the scope
of the routine inspection regime includes proprietary
information regarding the technical details of the production
process (e.g. temperature, pressure or catalysts) and marketing
information. Inspected facilities can store sensitive documents
that the inspection team must consult repeatedly (e.g.,
photographs, process flow charts, or notebooks) in a safe
located at the facility. The inspected facility can take any
requested photographs or samples instead of allowing the
inspection team to do it. The inspected State Party is also
allowed to inspect any instrument used or installed by the
inspection team and to have it tested in the presence of
representatives of the inspected State Party.
Under challenge inspections, States Parties have the right
and ability to manage access to their facilities by negotiating
the extent and nature of that access within the site (beyond
that provided under routine inspections at declared
facilities). The inspected facility can also negotiate the
activities of the inspection team and the information it
provides. States Parties also have the right to take steps to
prevent disclosure of sensitive information unrelated to
chemical weapons, such as shrouding, turning off computers and
covering or putting away papers or documents. States Parties
must, however, take steps to provide alternative means to
clarify any compliance concerns if the inspectors' access is
restricted.
Moreover, the Convention contains provisions for the
Executive Council (on which the U.S. is expected to have a
permanent seat) to prevent a challenge inspection from being
carried out if it determines that the inspection is
``frivolous, abusive or clearly beyond the scope of this
Convention.'' The Executive Council can also review the final
report of the inspection to determine if ``the right to request
a challenge inspection had been abused.''
2. U.S. Industry and the Chemical Weapons Convention (CWC)
Interest has been expressed in the reaction of chemical
industry to the Chemical Weapons Convention and the impact of
its provisions on the industry, notably with regard to
protection of nonchemical weapons proprietary information,
liability and avenues to redress concerns, and costs to
industry.
The CWC will have some negative repercussions on the U.S.
chemical industry. There are costs associated with the
industry's compliance with the convention, in the form of
reporting requirements, and verification activities. The
industry will have to educate and assign personnel to address
those requirements. The chemical industry will have to work
with a National Authority, a new governmental body, to
implement the Convention. Commercial chemical facilities will
be subject to inspections by international teams on relatively
short notice. And individual chemical plants are at risk of
losing proprietary information or their standing in the
community.
Nonetheless, the Chemical Manufacturers Association (CMA),
the Synthetic Organic Chemical Manufacturers Association
(SOCMA), the Pharmaceutical Research and Manufacturers of
America (PhRMA), the Biotechnology Industry Organization (BIO),
the American Chemical Society (ACS), and other trade
association support the Chemical Weapons Convention (CWC) and
believe that treaty compliance will not pose an undue burden on
industry. U.S. chemical manufacturers do not make chemical
weapons. The industry does produce commercial chemicals that
can be illegally converted into weapons. An effective CWC could
have the positive effect of liberalizing the existing system of
export controls applicable to the industry's products,
technologies, and processes.
Fred Webber, the President and CEO of CMA, summed up the
industry position in September 1995:
* * * the U.S. chemical industry has long supported
the Chemical Weapons Convention. We helped negotiate
that treaty, we've helped draft implementing
legislation for it, and we're prepared to live by it *
* * The United States must be a leader in stamping out
chemical weapons once and for all, and the U.S. must be
on of the original ratifying countries.
In March 1996, Mr. Webber continued by saying:
Fewer than 2000 American companies will be directly
affected. Of that number, less than 200 are likely to
ever have an on-site inspection * * * It won't put
companies out of business. And it won't keep lifesaving
pharmaceuticals off the market.
Chemical manufacturers are America's single largest
exporting sector. We exported over $60 billion in
products and technology last year, with a $20 billion
trade surplus * * * If the U.S. does not ratify the
treaty, that status will change. Our largest trading
partners are also party to the Convention, and will be
forced to apply trade restrictions to chemicals that
originate here, or that are being shipped here * * *
Potentially hundreds of millions of dollars of lost
sales, for no other reason than the U.S. is not part of
the CWC.
Honest businesses have nothing to fear. Anyone with
other motives will run the risk of getting caught in
the act. The treaty is the best means available to
prevent legitimate chemicals from falling into the
wrong hands.
The hallmark of the CWC is the degree to which the private
sector is included in the effort to ban CW production, storage
and use. Members of the chemical industry have worked closely
with U.S. CWC negotiators for many years to develop treaty
provisions designed to safeguard proprietary and confidential
business information during inspection and handling of
information provided by industry to the CWC organization as
well as to deal with a wide range of other issues of concern to
industry. This close working relationship has resulted in CWC
provisions generally acceptable to and supported by the
affected industry. U.S. industry representatives consulted with
U.S. Government negotiators on provisions affecting chemical
industry, participated in international industry meetings with
the chemical weapons negotiators in Geneva, and hosted national
trial inspections at chemical and pharmaceutical facilities.
They have continued to participate in CWC Preparatory
Commission meetings, U.S. Government sponsored industry
seminars, in trial inspections and in testing draft CWC
declaration formats.
The CWC protects against the loss of proprietary
information through a number of provisions. These include
inspection procedures designed to allow facilities to protect
information unrelated to chemical weapons and the ability to
negotiate facility agreements outlining inspection procedures
at particular facilities.
Specifically, the provisions for routine inspections
protect industry by limiting the number of routine inspections
a facility can receive in a year, providing advance
notification of inspector arrival, limiting the duration of
inspections, and restricting the scope of inspection to the
minimum necessary. Additionally, the CWC requires inspections
to be carried out in a manner designed to minimize the impact
on facility operations.
Additionally, the CWC contains detailed procedures for
safeguarding information collected by the international
chemical weapons organization. A separate Confidentiality Annex
provides procedures governing the protection and release of
information and procedures for punitive action against
employees who violate these rules.
The administration's proposed Chemical Weapons Convention
Implementation Act provides, with limited exceptions, for a
blanket prohibition on the disclosure of information or
materials obtained from declarations or inspections required
under the CWC. In particular, this provision is intended to
allow the U.S. Government to withhold such CWC-related
information from requests for disclosure under the Freedom of
Information Act.
The proposed U.S. implementing legislation contains further
provisions for safeguarding confidential business information
provided by industry to the USG for communication to the
international chemical weapon organization.
The provisions of the CWC and the U.S. proposed
implementing legislation address the issue of liability by
seeking to prevent liability in the first place. For example,
the CWC's verification regime contains a number of provisions
for protecting sensitive information unrelated to the CWC from
being compromised. These include: the right of the inspected
facility to have a facility agreement specifying the nature of
access and the information to be collected in routine
inspections; the right of the United States to manage access in
challenge inspections; and the right of the inspected facility
to take requested photographs or samples instead of the
inspection team.
Similarly, the CWC protects against damage by the
inspectors by, e.g., prohibiting their operation of facility
equipment. The CWC Confidentiality Annex also provides for the
protection of information designated confidential by States
Parties, establishes procedures to address concerns or
allegations of breaches of such obligations, and provides for
punitive measures where appropriate.
The PrepCom has also recognized that an increased burden on
the chemical industry means a substantial administrative burden
for the OPCW. The U.S. chemical industry has seen considerable
progress in reducing the potential reporting burden through
simplified declaration formats. Following a small test of the
revised formats by some 25 U.S. companies, the reporting burden
should be manageable. Proprietary information should be
protected, and the burden should be manageable.
The declaration forms are simple to complete and most firms
will not have to reveal any sensitive information. These data
declaration forms have been field tested with industry and
edited based on comments received. In addition, the forms have
been carefully reviewed by the Chemical Manufacturers
Association (CMA) and its comments have been incorporated as
well.
Commerce estimates that about 2,000 plant sites will be
required to file data declaration forms. Of these 2,000 plant
sites, Commerce estimates that over 90% belong to a basket
category called ``Unscheduled Discrete Organic Chemicals''
(DOC's). The DOC data declaration is a very simple form that
asks the company to specify the location of the plant site and
its general range of production (i.e., This plant site produced
over 2,000 metric tons of DOC's last year.) No other
information is requested and the form can therefore be
completed quickly.
Note that the DOC form does not ask for information on
acquisition, imports, exports or processing. The DOC form does
not require that a company even identify the specific DOC
chemical produced. All that is required for most DOC's, is a
check mark in a box that identifies the aggregate production
range. If the plant site produced any DOC's containing
phosphorus, sulphur, or fluorine (PSF), then the name of the
PSF plant is also required.
Critics allege that such limited information on DOC's
certainly won't reveal anything regarding possible CW programs,
and although the reporting burden appears rather modest, it is
just administrative harassment since the data serves no useful
purpose.
The information is requested to identify states that have
the technical capability to produce organic chemicals. Many
facilities that can produce DOC's not listed on any of the
three CWC Schedules may have the capability to switch
production to different product lines, possibly even to CWC
Scheduled chemicals. Accordingly, this limited information is
requested to keep abreast of facilities that have such
potential.
The OPCW will only commence inspections of facilities that
produce DOC's at the beginning of the fourth year after entry-
into-force (EIF). In the third year after EIF, the Conference
of States Parties will decide on the ``distribution of
resources available'' for inspections between facilities that
produce DOC's and PSF-Chemicals (DOC's that contain
phosphorous, sulfur, or fluorine).
The United States chemical industry is one of the most
widely and deeply regulated industrial sectors. The CWC has not
been, and must not be, seen as an opportunity to regulate the
industry for other policy reasons. The risk of such an
expansion is that the costs to industry, and the government, of
CWC compliance will be increased, while the treaty compliance
effort is reduced. Ultimately, if the U.S. Government imposes a
CWC regulatory regime that is significantly more onerous in
nature and scope from that adopted by other governments, there
are substantial adverse competitiveness implications.
One area of uncertainty arises from the likelihood that the
Department of Commerce will be responsible for working with
industry to ensure CWC compliance. Unless the Department of
Commerce is given the appropriate budget and manpower
resources, U.S. regulations and administrative responsibilities
under the CWC compliance may fall far short of the intended
goal.
The Commerce Department will play the lead role within the
U.S. Government for industry compliance with the CWC. As part
of this role, Commerce will collect information required by the
treaty so that it can be forwarded to the Organization for the
Prohibition of Chemical Weapons (OPCW). Commerce is committed
to minimizing costs and to maximizing protections of company
confidential information.
With regard to data declarations, Commerce:
developed user-friendly forms and instructions to
complete them. These materials have been field tested
and refined based on industry comments. No information
is requested that is not specifically required by the
CWC.
will provide substantial assistance to industry in
the data declaration process. Specifically, Commerce
will offer timely assistance to help firms determine if
they have a reporting requirement. If they do have to
report, Commerce will assist them in completing the
forms.
is developing an automated system that will enable
firms to submit declarations electronically.
will protect the confidentiality of information that
is submitted. The information management system is in a
secure location and will only be operated by staff with
appropriate security clearances.
is working as a member of the U.S. delegation to the
CWC PREPCOM to narrow the scope of products that will
be reported as ``Unscheduled Discrete Organic Chemicals
(DOC's). Accordingly, we expect to exclude a wide range
of commercial facilities from any data declaration
requirements.
The Commerce Department's CWC Information Management System
will be in a secure location that requires a special key card
for access. The system itself will be operated only by staff
with appropriate security clearances. Commerce has extensive
experience protecting CBI as part of its overall export
licensing operations and will be equally vigilant protecting
CWC-related Confidential Business Information (CBI).
Commerce plans to identify firms that are likely to be
subject to a routine inspections and work with them to develop
draft ``facility agreements'' to protect CBI. Commerce's
objective is to develop draft ``facility agreements'' before
inspections take place so that the equities of U.S. firms are
fully protected. Although the formal ``facility agreement'' is
between the State Party (Commerce serving as USG
representative) and the international organization, Commerce
intends to rely heavily on input from the facility being
subject to inspection.
In developing the ``facility agreement'', Commerce will
rely on a firm's determination regarding what constitutes CBI
and will protect U.S. firms against frivolous request that may
be made by international inspectors. The formal ``facility
agreements'' will set forth the site-specific ground rules for
the conduct of inspections and, if carefully crafted, will
effectively preclude the loss of CBI and limit frivolous
requests made by international inspectors.
Commerce estimates that approximately 140 U.S. plant sites
will be subject to routine inspections during the first three
years. Routine inspections will focus initially on producers of
Schedule 1 and Schedule 2 chemicals.
Challenge inspections are conducted based on an allegation
of noncompliance. These inspections may only be requested by a
State Party to the CWC and can be directed at declared and
undeclared facilities.
Commerce anticipates that there will be very few challenge
inspections. If there are any, Commerce expects that they will
be directed at U.S. military facilities who are experienced in
protecting their sites against espionage. In the event that
there is a challenge inspection of a non-Defense facility,
Commerce will ensure that the inspection is based on the CWC
principle of ``managed access.'' The Commerce approach will be
to ensure that the international inspectors pursue the least
intrusive means possible to obtain reasonable answers to
reasonable questions. Unreasonable questions need not be
answered at all.
Finally, it should be noted that there are some legal
avenues for redress available in case of loss of confidential
business information. U.S. firms and individuals may be able to
bring a lawsuit against inspectors and other Technical
Secretariat personnel for their unlawful action if the
Director-General of the Technical Secretariat waives their
immunity from suit in U.S. courts for their official acts, as
provided for in the CWC. In addition, these firms might pursue
a lawsuit against the United States under the Just Compensation
Clause of the Fifth Amendment to the Constitution (Takings
Clause).
Given the protection inherent in the CWC and the proposed
Act and the extent of potential U.S. Government liability for
actions over which it may have little or no control, the
Administration believes that specific provisions for U.S.
Government liability for the wrongful acts of Technical
Secretariat personnel are not required. However, the
administration is continuing to review possible changes to
existing law for providing remedies in this area.
Exact costs to industry as a result of their compliance
with the CWC are not yet known, but will depend on: the number
of affected companies, number of inspections per year (taking
into account quotas on inspections and resources of the
international inspectorate); the exact formats for
declarations; and the amount of preparation each company
undertakes for implementation. If one assumes the existence of
roughly 2000 CW Convention-related plant sites in the U.S., a
total of 30-60 routine inspections per year, as well as use of
the existing draft declaration forms and prudent preparations
for implementation, the administration estimates the cost to
industry to be under $5 million in the first year with
decreased annual costs thereafter.
In his testimony before the Senate Foreign Relations
Committee, Secretary of State Christopher, said: ``If the U.S.
is not a State Party, we will be subject to trade restrictions
levied by States Parties against non-States Parties. This could
have significant economic consequences for U.S. industry.''
Mr. Michael Moodie, told the Committee: ``if the U.S. is
not a party to the CWC, such a situation would have an
immediate and chilling effect on commercial trade in chemicals
with the U.S. chemical industry branded as a potentially
unreliable supplier of chemicals to the global market. The
result would be a devastating impact on the U.S. chemical
industry's positive balance of trade, which, in 1994, amounted
to a trade surplus of $18 billion on exports of $51 billion
dollars.''
In a letter sent to Senator Lugar on July 18, 1994, former
President Bush stated: ``My long-standing commitment to banning
chemical weapons has been shared by many others on both sides
of the aisle * * * I am convinced that the Convention we signed
served both objectives, effectively banning chemical weapons
without creating an unnecessary burden on legitimate
(commercial) activities.''
3. Repercussions on U.S. industry if the U.S. does not ratify the CWC
There is a cost to U.S. industry if the United States fails
to ratify the treaty. The CWC imposes trade controls on
countries that do not participate.
Upon the CWC's entry into force, exports of Schedule 1
chemicals may be made only to another State Party and then only
for research, pharmaceutical, medical or protective purposes.
The CWC also mandates that, for the first 3 years, trade in
Schedule 2 chemicals with non-States Parties is permitted only
with ``end-user certificates'' certifying that the chemicals
will not be used for CW purposes. After 3 years, all trade
(imports and exports) of Schedule 2 chemicals is prohibited
with countries outside of the CWC. Although Schedule 2
chemicals account for a relatively small portion of the U.S.
chemicals, the impact on U.S. firms will likely affect trade in
other chemicals as well. Companies tend to shop where there are
no restrictions and prohibitions, therefore restrictions/
prohibitions on trade in Schedule 2 chemicals will likely have
a cascading effect on the overall chemical industry. Since
there is ample foreign availability of chemicals in the
industrialized world, Japanese and European companies will
undoubtedly move to fill the gap in authorized supply that the
absence of U.S. availability would create.
The U.S. is the only G-7 country yet to ratify. All of
America's major trading partners have already done so.
The Australia Group (AG) and even non-AG countries who
ratify the CWC will be required to impose trade restrictions on
the United States and a total embargo on exports to the U.S. of
Schedule 1 chemicals immediately and on all trade in Schedule 2
chemicals after 3 years. Failure to ratify will effectively
place the U.S. in opposition to the principal global agreement
to prohibit CW and end America's leadership position in all
areas of CW nonproliferation. There will be a heavy price to
pay for U.S. industry and for American foreign policy.
Some have suggested that the U.S. wait for a year and see
how the CWC is actually implemented before the Senate ratifies.
If the Senate waits, the U.S. will not get a seat on the 41
member Executive Council that decides how the CWC is
implemented. Membership is particularly critical in the initial
stages of the program since the rules of the road will be
established in the early years. If the Senate ratifies the CWC
in September, the U.S. will be part of the initial club and are
assured a seat on the Council. If the Senate ratifies after all
the seats are assigned, there will not be another chance for
two years. In essence, coming too late to the table ensures
that the U.S. will have to comply with operating decisions made
without American involvement.
Challenge inspections of small businesses involved in
legitimate chemical work are not likely to happen. Requests for
challenge inspections will likely be directed at U.S. military
facilities or major companies with significant CBI equities at
stake. In the unlikely event that a frivolous challenge
inspection does occur at small business, Commerce will apply
all of the ``managed access'' protections described above.
D. Popular Misconceptions of the CWC
A popular argument against U.S. ratification of the CWC is
that the Convention will not be universal and that some of the
signatories and ratifiers will seek to cheat and break the
rules and norms set by the Convention to their advantage. That
not all members of the international community will sign the
CWC and that some of those who do may not abide by their
obligations are facts of international life. While these
assertions may be true, in and of themselves they are not
necessarily reasons to reject the treaty.
First, not all holdouts to signing the treaty are doing so
for the same reason. Some may indeed be seeking a CW capability
and do not want to have their options closed out by joining the
Convention. One could argue that the countries of most serious
concern with respect to CW--Iraq, Libya, North Korea--fall into
this category. Other holdouts, however, may have different
reasons for doing so. Egypt, for example, as well as some other
Arab states, have not signed because they believe it gives them
some bargaining leverage in the ongoing Middle East
negotiations. Other states may just be adopting a wait and see
attitude, looking to the success and speed of putting the new
agreement into place before acting.
The different reasons that states may currently be holdouts
in the CWC process suggest that not all of them will remain
outside the treaty in perpetuity. As the NPT demonstrated,
adherence increases over time as politics and cost-benefit
calculations change. The entry into force of the CWC itself
will change the context within which states make their
decisions regarding adherence. For some states, the tangible
benefits of membership could ultimately override their current
political decision to remain outside the regime. For others,
the prospect of concrete penalties may have a similar impact.
It must be recognized, however, that even as adherence
progresses toward universality, not all states are likely to
join the Convention. Is this sufficient reason for the U.S. not
to join the Convention? In light of the treaty's benefits, the
answer is no, particularly in light of the fact that the CWC
itself will help to limit the number of problem cases, and help
to bring the CW proliferation problem down to more manageable
proportions.
If holdouts do not provide sufficient reason to withhold
support for the CWC, what about cheaters? Just as some holdouts
must be anticipated, some violations of the CWC must be
expected. If it were not a possibility, then there would be no
need for the elaborate verification measures that have been
designed.
Why should the U.S. be concerned about cheaters? In short,
they represent a potential problem because their CW
capabilities could pose a threat to U.S. military operations in
support of our interests overseas. To pose such a danger,
however, those CW capabilities must be militarily significant.
Military significance is in part a function of the quantity of
toxic agent available. The amount of agent that must be used to
have a significant impact on the battlefield, however, is often
underestimated. One analysis, for example, argued that Iraq
might have had 2,000 tons of chemical agent, which translates
roughly into 500,000 artillery rounds. Such stocks are not
sufficient to sustain a protracted conflict. The problem of
limited supply is important because offensive chemical warfare
requires the use of large amounts of agent; contaminated
targets must be reattacked steadily.
CW programs of military significance to the United States,
of course, are a function of many factors other than just the
amount of agent. Analysts such as Brad Roberts argue that with
the CWC in place, these activities--stockpiling agent over long
periods, utilizing advanced delivery systems, and so on--which
together might create a problem for the U.S. should be
detectable.
Less detectable programs, while not militarily
inconsequential, should be manageable through chemical defense
programs. This is an example of how the CWC and other policy
instruments can and must work together. The CWC narrows the
problem to a range within which other tools, such as defensive
programs, can be effective. It also highlights the sometimes
overlooked fact that, unlike nuclear programs, the impact of CW
can be diminished through defensive programs. Understanding
that the U.S. and others have continued their commitment to
adequate defense capabilities could be an important factor in
the calculations of a potential CW proliferator about choosing
the CW path.
Many CWC opponents believe that by foregoing chemical
deterrence, the United States will deny itself an important
policy option. A chemical retaliatory capability may indeed be
useful in some theoretical scenarios, but it is likely to be
marginal, especially in light of the overwhelming conventional
power the U.S. can bring to bear against an adversary. As
Victor Utgoff of the Institute of Defense Analyses argues,
``the United States and its allies have such overwhelming
military power that, even without offensive CW capabilities,
they can match or exceed any level of violence that a CW armed
state could offer.'' Moreover, even if the U.S. retained
chemical weapons, it is questionable whether the U.S.
leadership would make the political decision to use them,
particularly given available high-technology conventional
options.
It has sometimes been argued that Saddam Hussein's
reluctance to use his CW stocks was a result of the ambiguous
nature of the promised U.S. response in the event of such use.
U.S. spokesmen were not specific about how they would respond,
implying any measure, including chemical retaliation, was
possible. No one can be certain why the Iraqi leader did not
use his CW, but his concern over possible chemical retaliation
is not the only answer. Some commentators argue that his
principal delivery systems--aircraft--were destroyed. Others
suggest that Iraqi troops were equally if not more vulnerable
to CW given their poor defensive equipment and prevailing
winds. Still others propose that Iraq was unable to deliver its
CW stocks to forward commanders. Finally, the ambiguous nature
of the certain U.S. response to CW use also included the
prospect of nuclear or conventional options. Saddam ultimately
may have decided that using CW would have changed the character
of the coalition's war aims from removing Iraq from Kuwait to
eliminating the Iraqi regime. At least some of these
explanations have an equal if not greater value in elucidating
Saddam Hussein's decision not to use CW than the prospect of
chemical retaliation.
In his testimony before the Committee, Secretary of Defense
Perry, argued ``while we recognize that detecting illicit
production of small quantities of CW will be extremely
difficult, we also recognize that would be even more difficult
without a CWC. In fact, the CWC verification regime, through
its declaration, routine inspection, fact-finding, consultation
and challenge inspections, should prove effective in providing
a wealth of information on possible CW programs that simply
would not be available without the convention.''
Dr. Brad Roberts told the Committee that ``CWC cannot rid
the world of chemical weapons, but it can effectively eliminate
them as a threat of operations significance to the U.S. * * *
it will narrow the range of scenarios in which the CW arsenals
of states will make a difference to the national security of
the U.S., by keeping the number of CW-armed states few and
their arsenals and war fighting skills relatively
unsophisticated. Absent the CWC, a much larger number of states
capable of using a much broader range of CW assets seems likely
to emerge, given proliferation trends.''
Dr. Roberts added: ``the regime promises to meet U.S. needs
with regard to verification. It will not detect all cheating
but should detect all militarily significant cheating, at least
in timely fashion * * * [the U.S.] has an impressive national
capability to monitor the military disposition of potential
adversaries and the proliferation problem more generally. The
monitoring inspections and on-site challenge inspections made
possible under the CWC will add a valuable dimension to U.S.
verification capabilities.''
Dr. Roberts continued: ``from the point of view of the
U.S., verification requirements are surprisingly modest. The
U.S. should not and cannot concern itself with illicit behavior
in every building or tunnel in the world. Rather, it should
concern itself with illicit behavior that is militarily
significant''
In his testimony before the Committee, Secretary of State
Christopher maintained that: ``The Convention's export-control
requirements and its prohibitions on assistance to chemical
weapons programs in other countries will support our global
strategy of curbing the spread of weapons of mass destruction.
They also will complement the Nuclear Non-Proliferation Treaty
and the Biological Weapons Convention.''
Mr. John Holum, Director of the U.S. Arms Control and
Disarmament Agency stated before the Senate Foreign Relations
Committee: ``while no treaty is 100 percent verifiable, the CWC
will increase the risk of detection and therefore help deter
illicit chemical weapons activities. Its declaration and
inspection provisions will help build a web of deterrence,
detection, and possible sanctions that reduces the incentives
for states to build chemical weapons.''
In his testimony before the Senate Foreign Relations
Committee, Ambassador Stephen Ledogar, the U.S. representative
to the Conference on Disarmament at the Department of State:
``the Convention further provides for national security through
provisions allowing for the maintenance of defensive programs
with the provision of assistance and protection in the event of
the use or threat of use of chemical weapons against states
parties.''
Still other opponents of the CWC believe that the
Convention is not verifiable. This contention arises perhaps
out of a misconception of verification. Three points should be
made in response. First, verification is not a mechanistic, cut
and dried process that produces unambiguous evidence of
noncompliance. As with other elements of arms control,
verification is at its core a political process. It is a
process of making judgments about information not in isolation,
but in a context. The information itself is not generated by
treaty-related activities alone, but by a range of sources,
including national means--technical and otherwise. A single
inspection indeed may not uncover a ``smoking gun'' to confirm
conclusively a cheater's noncompliance. This does not mean that
the treaty is ineffective, however. Rather, judgments regarding
noncompliance are formed on the basis of a mosaic of evidence
created over time from a range of activities including multiple
inspections, interviews, evaluations, and nontreaty related
inputs. The CWC's verification provisions create critical
opportunities for forming such a mosaic and noting quickly when
particular pieces do not seem to fit, prompting yet further
scrutiny.
Second, verification is not synonymous with monitoring. The
task of monitoring the evolution of CW programs will be a
challenge for the intelligence community whether there is a CWC
or not. The CWC, however, will supplement national
capabilities, not diminish them. In particular, it will
generate more data from more sources, some of which our
intelligence may not be able to secure through national means.
Third, the number of activities prohibited by the CWC are
not drawbacks to the treaty but verification opportunities.
Acquiring a CW program includes many stages--research and
development, production (somewhere), agent storage (either in
bulk or weaponized), filling munitions, incorporation into
offensive military doctrine, and training. Some of these
activities are more detectable than others. By including all of
them in its ban, the CWC creates opportunities to identify a
range of possible irregularities in a state's behavior. If one
piece of the mosaic does not seem to fit, then other pieces can
also be more closely examined for corroborative evidence.
Finally, how important are the admitted shortcomings of the
CWC's verification regime? In addition to the points already
made about military significance, there are at least two
mitigating considerations. First, CWC verification must be
judged not only against a standard of detection, but of
deterrence. The CWC will raise the costs of cheating to
potential proliferators. It also enhances the prospect of
detecting military significant programs. Together these factors
bolster deterrence. Second, some limits to intrusiveness are
needed to protect both national security and proprietary
business information. During the talks the U.S. negotiated hard
for a balanced approach, against those who wanted either
unfettered access that would put such information at risk or
those who preferred a greatly more restrictive approach. Such a
balance has been achieved.
IV. Conclusions
A. BIPARTISAN SUPPORT
The ratification effort is a strong example of
bipartisanship and continuity. It was President Bush's deep
personal commitment to the cause of banning chemical weapons
that led the U.S. finally to conclude this treaty, which the
U.S. signed seven days before he left office. President Bush
reiterated his strong support for the CWC in a letter to
Senators Pell and Lugar in July 1994:
My longstanding commitment to banning chemical
weapons has been shared by many others, on both sides
of the aisle. Indeed, your own efforts and those of
your Senate colleagues were instrumental both in
completing the negotiations successfully and in
ensuring that the Convention itself was the very best
that could be achieved * * * . The Convention clearly
serves the best interests of the United States in a
world in which the proliferation and use of chemical
weapons is a real and growing threat * * * . I urge the
Senate to demonstrate the U.S. commitment to abolishing
chemical weapons by promptly giving its advice and
consent to ratification.
President Clinton has made the Convention a foreign policy
priority of his Administration as well.
The Convention also enjoys strong support from affected
constituencies. The final text of the Convention reflected the
views of the U.S. military, the intelligence community, the
chemical industry and the Congress--all of which have a
compelling interest in the treaty and especially its
verification provisions. Prior to signing the CWC, the U.S.
Government conducted a thorough interagency review of the
entire treaty, and decided that the balances it struck
adequately protect U.S. interests. The Chemical Manufacturers
Association, the Synthetic Organic Chemical Manufacturers
Association, the Pharmaceutical and Research Manufacturers of
America, the Biotechnology Industry Organization, and the
American Chemical Society have fully endorsed the Convention on
behalf of its members and other trade associations have
expressed their support.
B. SUMMARY
The CWC seeks to deter the use of chemical weapons as a
military option through establishing a global norm against
their use, verification of compliance, establishing mechanisms
for alleviating concerns about suspected non-compliance and
applying punitive measures, and by providing assistance to the
victims of chemical weapons attack.
The CWC prohibits all chemical weapon use, including
retaliation in kind. However, the CWC specifically allows for
Parties to maintain CW defensive programs and does not
constrain non-CW military responses to chemical weapon attack.
Upon entry into force of the CWC, the United States, with its
superior military force, will no longer need an in-kind
retaliatory deterrent. The United States superior individual
protection and training program, detection capabilities and
medical support further reduce both the effectiveness of a CW
attack and an aggressor's incentive to use chemical weapons
against U.S. forces.
On May 13, 1994, the Department of Defense testified before
the Senate that ``DOD supports giving up the ability to
retaliate with CW because we have an effective range of
alternative retaliatory capabilities. Our protective
capabilities have been improved * * * We do not need chemical
weapons to deliver an effective response to CW.''
The CWC complements the U.S. CW deterrence posture by
reducing the probability of CW use through the following:
It ensures that each State Party has access to
assistance against CW to include individual protection
equipment, detection capabilities, and medical support.
The availability of such assistance can reduce the
effectiveness of a CW attack and therefore cause the
would-be aggressor to consider a less politically
costly option.
Unlike the Geneva Protocol, which only prohibited use
of CW, the CWC establishes a new and very significant
global norm prohibiting all offensive CW related
activities. The CWC not only bans the use of CW but it
will make it politically costly for a State Party to
develop or maintain a CW capability. The norm will
serve as a basis for international pressure against
non-Parties who have or are seeking to acquire CW
programs.
By banning the development, production, stockpiling,
and use of CW; the CWC seeks to remove the ability of
State Parties to openly prepare, deploy, and use
chemical weapons. Renegade countries choosing to
acquire CW will have to conduct these activities in a
secretive and therefore more expensive manner.
A militarily significant quantity of CW is situationally
dependent. Such variables as the aggressor's military
objectives, the level of protection and training of the
targeted force, environmental conditions, and the type of CW
used all affect the quantity of CW needed. Small amounts such
as one ton could suffice as a weapon of terror to cause panic
in a civilian population. Hundreds of thousands of tons may be
needed to interdict logistic nodes or have an impact on a
large-scale engagement.
The offensive use, or threat of use of CW against U.S.
forces will have a military impact. Merely operating in a
chemical threat environment causes U.S. forces to assume a
protective posture that may have a negative impact upon their
performance; however, the impact is mitigated as the force's
level of training and familiarity with their protective
equipment increases. The U.S. military's ability to
successfully engage the aggressor in a chemical environment and
to continue its mission is among the best in the world. This
ability is, has been, and will continue to be, a major factor
deterring aggressors from using chemical weapons against U.S.
forces.
The CWC specifically allows for Parties to maintain
defensive programs and does not constrain a Party's non-CW
military response. Superior U.S. military force, coupled with a
robust defensive program, will reduce the likelihood of CW use
against U.S. forces and the effectiveness of an attack, should
deterrence fail.
The CWC also complements the U.S. chemical weapons
deterrence strategy by providing a mechanism to focus global
attention on countries that violate its provisions and by
promoting nonproliferation of these weapons of mass
destruction. The CWC's provisions raise the economic and
political costs to produce, maintain, or use chemical weapons.
U.S.-CW deterrence is predicated upon the ability to
effectively retaliate with superior military force and maintain
a robust CW defense program. This deterrence posture will
dampen any potential aggressor's belief that a chemical weapons
program is worth the expense and the political risk.
In response to the allegation that the Chemical Weapons
Convention is not in the national security interests of the
U.S., Chairman Shallikashvilli argued before the Committee
that: ``The Chemical Weapons Convention is clearly in our
national interest. The Convention's advantages outweigh its
shortcomings. The United States and all other CW-capable state
parties incur the same obligation to destroy their chemical
weapons stockpiles.''
Lt. General Wesley Clark, the Director of Strategic Plans
and Policy in the Office of the Chairman of the Joint Chiefs,
argued before the Committee: ``From a military perspective, the
Chemical Weapons Convention is clearly in our national
interest. The convention's advantages outweigh its
shortcomings.''
In letters to Senators Lugar and Pell on July 18, 1994,
former U.S. President Bush argued: ``This Convention clearly
serves the best interests of the United States in a world in
which the proliferation and use of chemical weapons is a real
and growing threat.''
In a statement to the Henry L. Stimson Center, former
Secretary of State Lawrence Eagleburger remarked: ``The
Chemical Weapons Convention is an important part of an
international structure that would increase U.S. and global
security in the next century. If we do not lead this effort to
curb the proliferation of chemical weapons and initiate their
global elimination, we increase the chances that we will
encounter disasters in the 21st century reminiscent of those
that occurred in the first fifty years of the 20th century.''
Some critics argue that the U.S. will lose its autonomy and
jeopardize its national security by ratifying the CWC. In his
testimony before the Committee, Secretary of State Christopher
argued: ``If the United States is among the first 65 parties to
ratify the Convention, we will retain our critical leadership
role in the global fight against chemical weapons. If we are
not, we will lose the chance to ensure that our views are fully
reflected in the final preparations for entry into force. We
will not be able to participate immediately in the Organization
for the Prohibition of Chemical Weapons, which monitors
compliance. We will not be able to join immediately in
international inspections.''
Secretary of Defense Perry told the Committee: ``In the
Defense Department's view, a proper balance has been achieved
between effective verification of the Convention on the one
hand, and the protection of DOD's national security on the
other.''
Lt. General Wesley Clark, testified to the Committee that:
``While less than perfect, the verification regime allows for
intrusive inspections while protecting our national security
concerns.''
C. CONTINUING CONCERNS
Meeting the destruction schedule laid out in the CWC will
be a major challenge. Important political, environmental, and
economic barriers lie ahead. If the destruction effort does not
keep pace with implementation of other provisions of the CWC,
however, the credibility of the entire Convention will be
undermined.
A second question is the relationship between the CWC and
other aspects of CW nonproliferation policy. It is the
contention of some analysts that it is not only a possibility
but a likelihood that, following CWC ratification, the U.S.
will ``overcomply'' by setting aside its defensive programs as
a consequence of insufficient funding. If correct, this
observation is disturbing. The CWC will not obviate the need
for a robust chemical defense program which must be retained as
a hedge against the uncertainties of noncompliance.
Pursuit of defense programs should not be limited to
passive measures. The extent to which the U.S. can defend
against a range of advanced delivery vehicles will also bolster
the web of deterrence against CW proliferation. For this
reason, efforts to explore theater missile defense should be
continued.
Another critical area that must receive continued attention
is conventional capabilities. Conventional preponderance,
together with credible protective measures and active defense
capabilities, are likely to be of far greater importance in
defining the scope and intensity of the future CW threat.
Yet another issue that must be addressed relates to
assistance to a state that is subject to a CW attack or threat.
This question of assistance--what the U.S. or others will
provide, when, and under what conditions--requires more
detailed and systematic attention by all of the signatories.
So, too, does the problem of allegations of use. The bulk
of the verification regime is directed toward detecting
nonproduction of chemical weapons. That is as it should be
given the open nature of the Convention. Recent experience has
demonstrated, however, that evidence regarding alleged use of
chemical weapons is often ambiguous. From the initial moment of
entry into force, the parties to the Convention must do
whatever is necessary to bolster confidence that the
Convention's provisions for investigating allegations of use
will be rapidly exploited to minimize that ambiguity.
Finally, an important concern must be the question of what
state parties will do in the event they are confronted--as they
undoubtedly will be--with noncompliance. The United States
insisted during the negotiations that the decision on
determining a state's compliance was a sovereign right of
individual state parties. With that right, however, comes the
responsibility of a state party to know what it will do if
violations are detected. These sound like easy judgments, but
they are not. Past experience has demonstrated how contentious
the issue of possible treaty violations can be even among close
friends and allies.
Ultimately, the willingness of state parties to act in the
face of noncompliance, more than the sophistication of its
inspection provisions or the extent of its data reporting
requirements, will determine the CWC's effectiveness. If the
political will does not exist to make these agreements
important instruments of international policy, they are not
worth the paper on which they are written. If the political
commitment to action is absent, all of the inspections they
mandate are so much unproductive frenzy. If the political
strength to take on those who will not abide by the rules has
vanished, the penalties have the impact of a mosquito--
inconvenient and irritating perhaps, but no deterrent.
D. JUDGMENT
With all of these factors in mind, the majority of the
members of the committee have concluded that ratification of
the Chemical Weapons Convention is decidedly in the national
interests of the United States, its friends and allies, and the
world community. We reached this judgment in full awareness
that questions remain as to the ultimate effectiveness of the
Convention.
We are very much concerned as to what the alternative might
be. A United States decision not to join the Chemical Weapons
Convention would not stop it from entering into force, but
would surely undermine the effectiveness of the treaty and
would be harmful to critically important U.S. interests in
identifying and dealing with chemical weapons threats in
various parts of the world. It is not in our interest to be on
the outside looking in as the Chemical Weapons Convention is
set up.
Questions have been raised as to the effectiveness of the
verification of this Convention. A very careful balance was
struck at the United States insistence between intrusiveness
sufficient to gain knowledge and reassurance and possible
encroachments on individual rights and possible risks to
national security. Verification cannot be perfect, as would be
wished in ideal circumstances, but it will serve as a valuable
tool in helping American officials keep up with potential
threats. It will not substitute for our existing means of
gathering information but it will provide a valuable
augmentation.
Concerns have been expressed as to possible onerous burdens
the Convention might place upon American business. Having
closely investigated how the routine and challenge inspection
procedures might be implemented, we believe there is every
reason to conclude that this treaty will not constitute an
onerous burden for American business. It is important to
understand that representatives of the chemical industry were
involved from the outset in development of the testing
procedures and field testing and evaluation of various optional
approaches. The end result was achieved with the industry being
regulated as a major and decisive participant.
We understand fully that entry into force of the Convention
will not remove the threat of chemical warfare from the world.
Nonetheless, it will move us from the present circumstances in
which various nations can contemplate the use of chemical
weapons and even use such weapons without international
punishment, to a norm in which nations are expected to and are
under pressure to eschew the development, production, storage
or use of chemical weapons. Those who violate this norm will be
pariah states, and justifiably so. Over time, under this
Convention, the nations of the world are likely to move away
from toleration of chemical weapons, and that will constitute a
substantial boon for all mankind.
V. Appendices
LETTER OF SUPPORT FROM GEORGE BUSH
July 18, 1994.
Hon. Claiborne Pell,
U.S. Senate,
Washington, DC.
Dear Mr. Chairman: I understand that the Senate will be
voting on the Chemical Weapons Convention soon, and I wanted to
ensure that you and our colleagues were aware of my strong
support for the earliest possible ratification and entry into
force of this landmark agreement.
As you know, my own involvement in efforts to ban chemical
weapons began in 1984, when I presented the initial U.S. draft
treaty next to the Conference on Disarmament in Geneva.
Convinced of the threat posed by chemical weapons proliferation
and of the importance of banning these weapons from the face of
the earth, I made completion of the Chemical Weapons Convention
one of the top foreign policy priorities of my Administration.
It was, therefore, particularly gratifying to be able to send
Security of State Eagleburger to Paris in January 1993 to sign
the Convention on behalf of the United States.
My longstanding commitment to banning chemical weapons has
been shared by many others, on both sides of the aisle. Indeed,
your own efforts and those of your Senate colleagues were
instrumental both in completing the negotiations successfully
and in ensuring that the Convention itself was the very best
that could be achieved.
The United States worked hard to ensure that the Convention
could be effectively verified. At the same time, we sought the
means to protect both United States security interests and
commercial capabilities. I am convinced that the Convention we
signed served both objectives, effectively banning chemical
weapons without creating an unnecessary burden on legitimate
activities.
The Convention clearly serves the best interests of the
United States in a world in which the proliferations and use of
chemical weapons is a real and growing threat. United States
leadership played a critical role in the successful conclusion
of the Chemical Weapons Convention. United States leadership is
required once again to bring this historic agreement into
force. I urge the Senate to demonstrate the U.S. commitment to
abolishing chemical weapons by promptly giving its advice and
consent to ratification.
Sincerely,
George Bush.
------
Letters of Support from the Chemical Industry
1. The Chemical Manufacturers Association (CMA)
Chemical Manufactures Association,
Arlington, VA, May 9, 1996.
Hon. Richard Lugar,
U.S. Senate,
Washington, DC.
Dear Senator Lugar: The Chemical Manufacturers Association
(CMA) wishes to reiterate its strong support for the Chemical
Weapons Convention (CWC) now before the Senate. In CMA's view,
the CWC is a reasonable, effective mechanism to eliminate the
threat of chemical weapons on a global basis.
CMA's support for the CWC is based on our long involvement
in the negotiation and implementation of the agreement. The CWC
provides a unique balance between verification and deterrence
needs, and the legitimate commercial interests of American
business. Indeed, CMA has carefully weighed the costs and
benefits of the CWC's reporting and inspection provisions. In
every instance, the benefits of the treaty far outweigh the
potential costs to industry.
A great deal of attention has been focused recently on the
number and type of facilities affected by the CWC. CMA's
analysis indicates that the CWC compliance burden on affected
facilities is both reasonable and manageable. Furthermore,
implementation decisions have already narrowed the scope of the
CWC significantly, and future decisions are likely to further
reduce the number of potentially affected U.S. commercial
facilities. The number of companies affected by the CWC is
lower than the number of affected facilities, as many affected
companies own multiple facilities across the U.S.
Schedule 1 requirements
As you know, the CWC imposes the most stringent
requirements on facilities producing or consuming Schedule 1
chemicals--materials with direct weapons applications. The
information CMA has indicates that there are 11 U.S. facilities
consuming Schedule 1 materials, all in the pharmaceutical area
[See Attachments 1 and 2]. The CWC does not prohibit the use of
Schedule 1 materials for pharmaceutical purposes, of course.
The CWC's reporting and inspection requirements for Schedule 1
facilities entail completing a two to three page declarations.
CMA is working with the Department of Commerce's Bureau of
Export Administration to design declaration forms for Schedule
1, 2 and 3 facilities in order to achieve overall U.S.
compliance with CWC while minimizing the administrative burden
on industry. The CWC's reporting and inspection requirements
for Schedule 1 facilities are likely to be no more burdensome
that those already imposed by the federal Occupational Safety
and Health Act.
Schedule 2 requirements
The CWC also imposes declaration and inspection obligations
on the producers, processors and consumers of Schedule 2
chemicals--the direct precursors of weapons agents. There are
relatively few affected Schedule 2 facilities in the United
States. Although at one point CMA believed there may be as many
as 200 Schedule 2 facilities in the U.S., more recent
information indicates that there are only some 30 to 35
facilities that will be subject to the initial and thereafter
annual declaration requirements, in addition to, routine
inspections to verify the accuracy of declarations and declared
activities [See Attachments 1 and 2].
There are several reasons for the lower number of affected
U.S. Schedule 2 facilities. The scope of the Schedule 2
provisions has been narrowed by determinations that it does not
apply to materials such as brominated fire retardants, for
example. In addition, there are only a handful of U.S.
producers of Schedule 2 chemicals, and few commercial consumers
of these materials in quantities above the CWC thresholds [See
Attachment 1].
Schedule 3 requirements
The CWC provisions for Schedule 3 chemicals--the high-
volume indirect precursors of weapons agents--affect
approximately 60 U.S. facilities. The Schedule 3 provisions
apply only to the production, import and export of the
materials in quantities in excess of the CWC threshold;
consumption or processing of these substances are not affected
by the CWC. Compared to Schedule 2 facilities, Schedule 3
facilities pose a relatively lower risk to the object and
purpose of the CWC. This is reflected in the less detail
reporting and less frequent inspection requirements applied to
Schedule 3 facilities [See Attachments 1 and 2].
Requirements for discrete organic chemicals
The majority of U.S. producers of ``discrete organic
chemicals'' will be impacted by the CWC. It is important to
note that the requirements only apply to producers of these
materials, and do not affect consumers, processors, importers
or exporters. As many as 1,800 U.S. facilities may produce
discrete organics in excess of the CWC thresholds. These
facilities face no threat of routine inspections under the CWC,
and will only be expected to file a one-page annual report with
the U.S. government. This requirement is significantly less
than the compliance burden already associated with U.S.
environmental regulations [See Attachment 1].
The potential scope of the discrete organic reporting
burden has been narrowed as exceptions in the CWC have been
clarified. For example, facilities producing polymers and
oligomers will have no reporting obligations, as it is
recognized that these materials pose no risk of weapons-related
activities. Work is currently underway to clarify the scope of
the CWC's exemption of hydrocarbon facilities. CMA expects
that, at a minimum, U.S. oil refineries and closely related
processes will be exempt from the discrete organic reporting
obligation.
Requirements for chemical mixtures
The scope of the CWC will also be narrowed as the
signatories address the application of the reporting and
inspection provisions to mixtures of the Scheduled chemicals.
There are chemicals mixtures containing precursors from which
it is impractical (and at times, chemically impossible) to
separate out usable amounts of the precursor material. As these
mixtures present little threat of diversion to chemical weapons
production, they are likely candidates for exemption from the
CWC. CMA has been working closely with the U.S. government on
this issue.
Conclusion
It should be apparent that the primary impact of the CWC is
indeed on chemical manufacturers, and not on the downstream
consumers of chemical products. Chemical manufacturing is
already one of the most-regulated sectors of American commerce,
and the CWC imposes no compliance burden that is different in
nature or scope from those already imposed by U.S. law.
In field tests of the proposed U.S. declaration formats,
potentially affected facilities reported that the time required
to complete a declaration ranged from 2 to 8 hours for a
Schedule 2 facility, which requires more detail than a Schedule
3 or discrete organic facility. The time required to complete
the declaration can be expected to go down as facilities gain
experience with the CWC.
The important point is that the CWC is an effective means
of assuring that commercial chemicals are not diverted to
illegal weapons uses. Our industry is committed to eradicating
the threat of chemical weapons; the CWC is the best way of
achieving that goal.
If we can provide any additional information on the CWC and
commercial chemicals, please contact me or Claude Boudrias,
Legislative Representative, at 703/741-5915.
Sincerely,
Frederick L. Webber, President and CEO.
Attachment.
2. The Synthetic Organic Chemical Manufacturers Association (SOCMA)
Synthetic Organic Chemical
manufacturers Association, Inc.,
Washington, DC, August 12, 1996.
Hon. Richard G. Lugar,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Lugar: The Synthetic Organic Chemical
Manufacturers Association (SOCMA) would like to take this
opportunity to express its position on the ratification of the
Chemical Weapons Convention (CWC). SOCMA is supportive of the
overall goals of the Chemical Weapons Convention and supports
Senate ratification of the treaty and prompt passage of the
necessary implementing legislation.
SOCMA is the leading association representing the batch and
custom chemical industry. This industry produces 95 percent of
the 50,000 chemicals manufactured in the U.S. while making a
$60 billion annual contribution to the economy. SOCMA's 260
member companies are representative of the industry and are
typically small businesses with fewer than 50 employees and
less than $50 million in annual sales.
In order for a ratified CWC to be effective, Congress will
need to pass implementing legislation that: 1) produces the
least burdensome reporting requirements that do not exceed the
objectives of the treaty; 2) contains adequate protection for
proprietary information; and 3) does not damage the domestic
chemical industry's competitive position.
Since it appears that the CWC is on the verge of obtaining
the 65 signatories necessary to begin the implementation
process, SOCMA believes that it is both in the best interest of
its members and also the best economic interest of the United
States for Congress to address these issues in a timely
fashion.
I am attaching a detailed paper on SOCMA's position on the
Chemical Weapons Convention. I welcome any questions you may
have regarding SOCMA's position.
Sincerely,
Graydon R. Powers, President.
------
3. The Pharmaceutical Research and Manufacturers of America (PHRMA)
PhRMA,
Washington, DC, August 7, 1996.
Hon. Richard Lugar,
U.S. Senate, Washington, DC.
Dear Senator Lugar: The Pharmaceutical Research and
Manufacturers of America (PhRMA) represents this country's
leading research-based pharmaceutical and biotechnology
companies. Investing nearly $16 billion a year in discovering
and developing new medicines, PhRMA companies are the source of
nearly all new drug developments in the United States.
PhRMA has had a long and continued interest in the
development of an international Chemical Weapons Convention
(CWC). As an industry we believe that while there are many
dual-use chemical technologies being used for legitimate
purposes, their use for the development and propagation of
chemical weapon should be strongly discouraged by the United
States and the world. Since 1990, we have worked with the
Chemical Manufacturers Association (CMA) in their efforts to
help the U.S. Government develop a CWC which is effective, but
that also protects our industries' legitimate confidential
business information. PhRMA was represented on the CMA Chemical
Weapons Work Group and we congratulate CMA on the constructive
efforts that they have made on behalf of our industries to
explain the technologies and why some processes should be
protected as proprietary. We believe that the CWC now up for
ratification is a good attempt to balance the conflicting
concerns of enabling the intelligence community to catch
violators while not exposing our companies to more intrusive
declarations and inspections than is absolutely necessary. As
such we believe that the U.S. Government should ratify the CWC,
and make domestic implementing legislation a priority.
PhRMA is concerned that our support for the CWC is being
misconstrued, and confused with our concerns over the
development of a verification protocol for the already-approved
1972 Biological Weapons Convention (BWC). We see the BWC and
CWC as entirely separate issues, both due to the nature of the
technologies and the status of the conventions. While the U.S.
Government does not yet have a position on the BWC Protocol
negotiations, we anticipate that PhRMA and our member companies
will be contributing as fully and constructively to the BWC
Protocol as CMA has done for CWC.
Sincerely,
Alan F. Holmer.
------
4. The Biotechnology Industry Organization (BIO)
Biotechnology Industry Organization (BIO),
Washington, DC, September 5, 1996.
Hon. Richard Lugar,
U.S. Senate,
306 Hart Senate Office Building, Washington, DC.
Dear Senator Lugar: The Biotechnology Industry Organization
(BIO) represents over 650 companies and affiliated
organizations. Our members are developing products in variety
of sectors including health care, agriculture, and
environmental remediation. We would like to take this
opportunity to go on record in support of ratification of the
Chemical Weapons Convention (CWC).
As you are aware, the Chemical Manufacturers Association
(CMA) took the lead in addressing industrial concerns
throughout the treaty negotiations. BIO followed these
negotiations since a small subset of Schedule One chemicals
might be used by our industry in the development of new
products. We have been briefed by CMA staff and believe that
concerns about the protection of proprietary information during
inspections under the convention are resolved. Reporting and
record keeping requirements appear not to be overly burdensome,
even in the case where certain Schedule One chemicals may be
used during production.
BIO's principal ongoing concern is with the emerging
discussions regarding development of inspection and
verification protocols under the Biological Weapons Convention
(BWC). We continue the active discussions with our U.S.
negotiators that began three years ago. We do not believe that
ratification of the CWC will set any precedent as to the final
form of the BWC.
Sincerely,
Carl B. Feldbaum, President.
------
5. The American Chemical Society (ACS)
American Chemical Society,
Washington, DC, August 9, 1996.
Hon. Richard G. Lugar,
U.S. Senate,
Washington, DC.
Dear Senator Lugar: The American Chemical Society (ACS) is
the world's largest scientific organization with over 150,000
chemical scientists and engineers employed in industry,
academia, and government. In view of the current debate on
ratification of the Chemical Weapons Convention, the Society
offers its perspective.
The American Chemical Society strongly supports the overall
goals of the Chemical Weapons Convention and urges immediate
ratification of the treaty. Further, the Society believes that,
after treaty ratification, the Congress should expedite
consideration and passage of the needed implementing
legislation.
For over a decade, the U.S. chemical industry has worked
with the negotiators to craft the treaty. The industry
continues to work to ensure that the treaty and its
implementation are not unduly burdensome on American business.
The U.S. chemical industry, with its positive trade balance and
a $60 billion per year export business, has generated thousands
of jobs. Without U.S. ratification, a treaty in force will
adversely affect this industry as overseas customers start
switching to suppliers in countries that have ratified the
Convention.
The ACS's congressional charter imposes a responsibility to
provide assistance to the government in matters of national
concern related to its areas of expertise. The American
Chemical Society has a long history of discussion on chemical
warfare policies and of advising the government in this area.
As the Senate deliberates on the treaty and its implementation,
the Society offers its support and expertise. If we can provide
assistance on this important issue, please call on us.
Sincerely yours,
Ronald Breslow,
President.
------
6. 53 Senior Chemical Industry Executives
August 29, 1996.
Hon. Claiborne Pell,
U.S. Senate,
Washington, DC.
Dear Senator Pell: The undersigned senior executives of
chemical companies urge your vote in support of the Chemical
Weapons Convention (CWC), and quick Senate action on
legislation to implement this important treaty.
The chemical industry has long supported the CWC. Our
industry participated in negotiating the agreement, and in U.S.
and international implementation efforts. The treaty contains
substantial protections for confidential business information
(CBI). We know, because industry helped to draft the CBI
provisions. Chemical companies also help test the draft CWC
reporting system, and we tested the on-site inspection
procedures that will help verify compliance with the treaty. In
short, our industry has thoroughly examined and tested this
Convention. We have concluded that the benefits of the CWC far
outweigh the costs.
Indeed, the real price to pay would come from not ratifying
the CWC. The treaty calls for strict restrictions on trade with
nations which are not party to the Convention. The chemical
industry is America's largest export industry, posting $60
billion in export sales last year. But our industry's status as
the world's preferred supplier of chemical products may be
jeopardized if the United States does not ratify the
Convention. If the Senate does not vote in favor of the CWC, we
stand to lose hundreds of millions of dollars in overseas
sales, putting at risk thousands of good-paying American jobs.
The U.S. chemical industry has spent more than 15 years
working on this agreement, and we long ago decided that
ratifying the CWC is the right thing to do.
We urge you to vote in support of the Chemical Weapons
Convention.
Sincerely,
J. Lawrence Wilson, Chairman & CEO, Rohm and Has Company,
Chairman, Board of Directors, Chemical Manufacturers
Association.
Alan R. Hirsig, President & CEO, ARCO Chemical Company,
Chairman, Executive Committee, Chemical Manufacturers
Association.
H.A. Wagner, Chairman, President & CEO, Air Products &
Chemicals, Inc.
D.J. D'Antoni, President, Ashland Chemical Company.
Helge H. Wehmeier, President and CEO, Bayer Corporation.
John D. Ong, Chairman & CEO, The BF Goodrich Company.
Robert R. Mesel, President, BP Chemicals, Inc.
Charles M. Donohue, Vice President, Alkzo Nobel Chemicals,
Inc.
J. Dieter Stein, Chairman & CEO, BASF Corporation.
W.R. Cook, Chairman, President & CEO, Betz Dearborn, Inc.
Joseph M. Saggese, President & CEO, Borden Chemicals and
Plastics, LP.
Dr. Aziz I. Asphahani, President & CEO, Carus Chemical
Company.
Vincent A. Calarco, Chairman, President & CEO, Crompton &
Knowles Corporation.
Richard A. Hazleton, Chairman & CEO, Dow Corning
Corporation.
Howard J. Rudge, Senior Vice President & General Counsel,
E.I. duPont de Nemours & Company.
Richard G. Fanelli, President & CEO, Enthone-OMI Inc.
J.E. Akitt, Executive Vice President, Exxon Chemical
Company.
William S. Stavropoulos, President & CEO, The Dow Chemical
Company.
Earnest W. Deavenport, Jr., Chairman of the Board & CEO,
Eastman Chemical Company.
Bernard Azoulay, President & CEO, Elf Atochem North
America.
Bruce C. Gottwald, CEO, Ethyl Corporation.
Ron W. Haddock, President & CEO, FINA, Inc.
Robert N. Burt, Chairman & CEO, FMC Corporation.
Otto Furuta, V.P. Global Logistics & Materials Management,
Great Lakes Chemical Corporation.
R. Keith Elliott, President & CEO, Hercules, Inc.
Hans C. Noetzli, President & CEO, Lonza Inc.
Robert G. Potter, Executive Vice President, Monsanto
Company.
Dr. William L. Orton, Senior Vice President, Chemical
Operations, Givaudan-Roure Corporation.
Michael R. Boyce, President & CEO, Harris Chemical Group.
Thomas F. Kennedy, President & CEO, Hoechst Celanese
Corporation.
Mack G. Nichols, President & CEO, Mallinckrodt Group, Inc.
S. Jay Stewart, Chairman & CEO, Morton International, Inc.
E.J. Mooney, Chairman & CEO, Nalco Chemical Company.
Jeffrey M. Lipton, President, NOVA Corporation.
Donald W. Griffin, Chairman, President & CEO, Olin
Corporation.
Peter R. Heinze, Senior Vice President, Chemicals, PPG
Industries, Inc.
Phillip D. Ashkettle, President & CEO, Reichhold Chemicals,
Inc.
Ronald L. Spraetz, V.P., External Affairs & Quality,
National Starch & Chemical Company.
J. Roger Hirl, President & CEO, Occidental Chemical
Corporation.
David Wolf, President, Perstorp Polyola, Inc.
Ronald H. Yocum, Chairman, President & CEO, Quantrum
Chemical Company.
Thomas E. Reilly, Jr., Chairman, Reilly Industries, Inc.
Peter J. Neff, President & CEO, Rhone-Poulenc, Inc.
Nicholas P. Trainer, President, Sartomer Company.
J. Virgil Waggoner, President & CEO, Sterling Chemicals,
Inc.
W.H. Joyce, Chairman, President & CEO, Union Carbide
Corporation.
Arthur R. Sigel, President & CEO, Velsicol Chemical
Corporation.
Roger K. Price, Senior V.P., Mining & Manufacturing, R.T.
Vanderbilt Company, Inc.
F. Quinn Stepan, Chairman & President, Stepan Company.
William H. Barlow, Vice President, Business Development,
Texas Brine Corporation.
Robert J. Mayaika, President, CEO & Chairman, Uniroyal
Chemical Company, Inc.
John Wilkinson, Director of Government Affairs, Vulcan
Chemicals.
Albert J. Costello, Chairman, President & CEO, W.R. Grace &
Company.
IX. MINORITY VIEWS
introduction
It became clear over the course of the committee's
consideration of the Chemical Weapons Convention that there
existed unanimous agreement that a verifiable treaty
accomplishing real reductions in chemical weapons clearly would
be in the national security interests of the United States.
However, we do not believe that the treaty submitted to the
Senate is verifiable. Nor will it reduce the arsenals of
terrorist countries and other nations hostile to the United
States. Several countries identified by our government as
possessing chemical weapons have not even signed the Chemical
Weapons Convention, let alone ratified it. Yet those
countries--among them Libya, Syria, Iraq, and North Korea--are
the countries most likely to use chemical weapons against
America or our allies. Moreover, not one country of concern to
the United States has ratified this Convention. Neither the
People's Republic of China nor Iran, for example, have
ratified.
Furthermore, Russia--the country that possesses the largest
and most sophisticated chemical weapons arsenal in the world--
has consistently refused to agree to implement its commitments
to eliminate its chemical weapons stockpile, despite the 1990
U.S.-Russian Bilateral Destruction Agreement. To the contrary,
we are concerned that Russia consistently has refused to
accurately declare the size of its chemical weapons stockpile,
and to provide information on the status of its binary chemical
weapons program. We believe this portends ominous things to
come in terms of Russia's compliance with the Chemical Weapons
Convention (CWC).
With respect to verifiability, we note that even senior-
most administration officials have conceded that the Convention
submitted to the Senate is not verifiable. The then-Director of
Central Intelligence, James Woolsey, declared in testimony
before this Committee on June 23, 1994, that ``the chemical
weapons problem is so difficult from an intelligence
perspective, that I cannot state that we have high confidence
in our ability to detect noncompliance, especially on a small
scale.''
Furthermore, not one country that is pursuing chemical
weapons--with the exception of the United States and its
allies--can be expected to abide by the CWC, whether or not
they ratify. Too many chemicals are dual-use in nature.
Chemicals used to make ball point pens can be used to make
deadly nerve agent. It is impossible to monitor every soap,
detergent, cosmetic, electronics, varnish, paint,
pharmaceutical, and chemical plant around the world to ensure
that they are not producing chemical weapons, or that toxic
chemicals are not being diverted to the production of weapons
elsewhere. Countries are well aware that if they ratify the
CWC, they can cheat with impunity.
What the Chemical Weapons Convention will do, however, is
have a major impact upon industry. According to a database
supplied to the Senate Foreign Relations Committee by the Arms
Control and Disarmament Agency, at least 3,000 U.S. firms that
consume, process, or manufacture chemicals will have data
declaration and/or inspection obligations under the CWC. Our
review of ACDA's information persuades us that as many as 8,000
companies potentially may be affected. Firms that manufacture
anything from dyes and pigments, insecticides, pharmaceuticals,
ceramics, nylon, paint and varnish, electronics, textiles, and
soap and detergent--just to name a few--all will be subject to
multinational regulation under the CWC.
These companies will be forced to spend more money to hire
more people to fill out more government forms. Some will be
forced to submit to routine inspections. Others may be subject
to intrusive challenge inspections by an international
inspectorate. In fact, we fully expect some of those foreign
inspectors to practice economic espionage against our
companies. And a small number of companies, comprised largely
of biotechnology and pharmaceutical firms, may find their
access to certain chemicals constrained or shut off. The most
troubling fact about all of this is that the overwhelming
number of these firms are not even aware of the implications of
the Chemical Weapons Convention.
The CWC also will undo decades of arms control efforts at
stemming the tide of chemical weapons proliferation. First,
Russia has withdrawn from a much older bilateral commitment to
the United States to destroy its chemical weapons stockpiles,
citing the less intrusive, less-effective CWC as a preferable
alternative. Second, the CWC papers over the fact that the
international community has consistently refused to enforce a
far more verifiable ban on the use of chemical weapons--the
1925 Geneva Protocol. In fact, the preamble of the CWC falsely
claims that ``the General Assembly of the United Nations has
repeatedly condemned all actions contrary to the principles and
objectives of the Protocol * * *'' In fact, after Iraq's
repeated use of poison gas against its Kurdish population, the
United States could not even secure within the United Nations a
resolution mentioning Iraq by name.
Third, the CWC seeks to eliminate trade restrictions on
toxic chemicals, threatening to undermine a 29-nation agreement
(the Australia Group) to restrict trade in dangerous chemicals
to nonmembers. Yet the Australia Group maintains tighter
controls on 20 more chemical weapons precursors than does the
CWC. We must think carefully about the consequences of
undercutting the most stringent barrier to chemical weapons
proliferation in existence. Despite the fact that the
international chemical industry supports the CWC because it
sees new market opportunities, the United States should be
leery of providing countries that may ratify, such as Iran and
India, with qualitative and quantitative increases in chemical
weapons-related technology.
In view of these serious concerns with the CWC, we cannot
support ratification of the treaty at this time. The Senate
should insist that the United States become party only to a
verifiable treaty that is binding on those nations most likely
to threaten our national security. In our judgment, approving
this treaty will prove counterproductive--accelerating the
spread of chemical weapons rather than slowing it--and will
have disastrous consequences for thousands of U.S. businesses.
The following assessment, concluded by the majority staff
of the Foreign Relations Committee, details the CWC's likely
impact upon our national security, its implications for
thousands of U.S. businesses, its verifiability, its cost,
constitutionality, and other related issues. Included are our
specific recommendations to the Senate.
A. MILITARY SIGNIFICANCE
Certainly major domestic political constraints have shaped
debate in the United States over the use of chemical weapons.
However, the moral opprobrium attached to chemical weapons
should not give rise to unrealistic expectations regarding the
CWC's impact upon future conflicts, or prompt anyone to dismiss
the willingness of other countries to use such weapons.
Not only can chemical weapons be used as instruments of
terror, blackmail, and intimidation, but they also may be used
by several countries in war-fighting functions. In fact, the
possibility is heightened in the post-cold-war era that
chemical weapons will be used in an increasing number of
military capacities: to quell internal ethnic conflicts, as
Iraq sought to do with its Kurdish population in 1988; in the
context of regional disputes (as countries to seek to offset
one another's capabilities through a variety of means,
including chemical weapons); or as a means of deterring or
rendering more costly U.S. intervention in regions in defense
of its vital national interests.
During Operation Desert Storm, allied air attacks were
focused upon facilities associated with Iraq's chemical weapons
program. Muthanna, a facility 65 miles north of Baghdad, was
the nucleus of Iraq's chemical weapons program and a priority
target during the early days of the Gulf War. Discussing the
U.S. military's concern with Iraq's chemical weapons program,
General Norman Swarzkopf remarked during a press briefing in
Riyad, Saudi Arabia, on February 27, 1991, that:
The nightmare scenario for all of us would have been
to go through [the Iraqi tank barrier], get hung up in
this breach right here, and then have the enemy
artillery rain chemical weapons down on the troops that
were in the gaggle in the breach right here.
Most recently, on March 18, 1996, the Director of the Defense
Intelligence Agency (DIA), Lieutenant General Patrick Hughes,
forwarded to the Chairman a DIA assessment of North Korea's
military capabilities which underscored U.S. concerns with the
warfighting uses to which chemical weapons can be put.
According to the study:
In any attack on the South, Pyongyang could use
chemical weapons to attack forces deployed near the
DMZ, suppress allied airpower, and isolate the
peninsula from strategic reinforcement.
Types of chemical weapons and riot control agents
Chemical weapons can be classified according to a number of
physical and chemical properties:
(a) lethality/nonlethality;
(b) mode of action (such as inhalation, skin-contact,
or oral ingestion);
(c) speed of action (the delay between exposure and
effect);
(d) toxicity (the quantity of substance required to
achieve a given effect);
(e) persistency (the length of time the agent remains
a hazard); and
(f) physical state (solid, liquid, or gas).
The military uses of a given chemical weapon will vary
according to its unique combination of these properties. The
following information on the various types of chemical and riot
control agents and their field employment is extracted from the
Central Intelligence Agency's ``The Chemical and Biological
Warfare Threat.''
Choking Agents, such as chlorine and phosgene, are ``first-
generation chemical weapons'' and are the oldest chemical
weapons agents. Heavy gases that remain near to ground level,
these agents are non-persistent--dissipating rapidly in a
breeze--and are militarily useful only for creating a short-
term respiratory hazard on territory to be quickly seized.
Blood Agents, such as hydrogen cyanide and cyanogen
chloride, are also first-generation agents. They are highly
volatile and dissipate rapidly, but can rapidly degrade the
effectiveness of a gas mask filter. Blood agents, therefore,
may be used in conjunction with other agents to defeat chemical
defenses.
Blister Agents, such as sulfur mustard, nitrogen mustard,
and lewisite, are persistent and act on contact with skin as
well as through respiration. These first-generation agents have
been used in the past to cause casualties and to slow military
operations. By forcing military personnel to don protective
clothing and gas masks, mustard can hinder and reduce military
effectiveness. Moreover, this agent is--according to the CIA--
``simple to produce, even by Third World standards.''
G-Series Nerve Agents, such as tabun, sarin, soman, and GF,
are second-generation compounds that were accidentally
discovered in the 1930's by German chemists seeking to develop
new types of pesticides. Relatively nonpersistent, these agents
act rapidly and may be absorbed through the skin or by
respiration.
V-Series Nerve Agents, such as VE, VG, VM, VS, and VX are
more advanced, third-generation compounds designed to be more
toxic and persistent than G-Series agents. Posing a greater
skin hazard, these agents can be used to contaminate territory
for long periods of time.
Tear Gas Agents, such as CS, CN, PS, and BBC, are nonlethal
in all but the most extreme concentrations, and are used in
riot control or to disrupt tactical operations. These agents
are also used by the U.S. military in a variety of other
circumstances, such as in the rescue of downed pilots or in
ongoing operations in proximity to friendly troops. In the
parlance of the Convention, tear gas agents are riot control
agents (RCA's)--not chemical weapons.
Vomiting Agents, such as Adamsite and diphenyl
chloroarsine, are also nonlethal in most cases and are used in
situations similar to those well-suited for the use of Tear Gas
Agents. In addition, vomiting agents may defeat or make
impossible the use of masks, and thus may be used in
conjunction with other lethal chemical weapons agents. Again,
these agents should be considered RCA's.
Psychochemicals, such as LSD, BZ, and benactyzine, can be
used to incapacitate both military and civilian personnel for a
short period of time with a very low chance of fatalities. As
incapacitants, these chemicals are akin to other RCA's.
Modes of chemical weapons dissemination
Several methods of dissemination have been used for the
delivery of chemical weapons, including release of airborne
gaseous agents from ground-based aerosol generators; artillery
shells; mortar rounds; aerial spray tanks; missile warheads;
artillery rockets; land mines; grenades; and aerial bombs. The
most simple munitions among these contain a bulk-fill of agent
surrounded by explosive charges. These charges detonate over
the target, rupturing the munition and dispensing the agent as
a stream or cloud of droplets. In the case of unitary agents,
the munition contains the actual chemical weapon itself. Binary
munitions, on the other hand, contain two precursors which mix
beforehand or during flight to form the chemical weapons agent.
Binary munitions are safer since the precursors are generally
less toxic, but carry a smaller volume of agent once mixed.
Of course, chemical weapons do not require sophisticated
delivery systems. Agent can be introduced against a target by a
``crop-duster'' or even by a single individual.
Warfighting uses of chemical weapons
Chemical weapons have several military uses. In particular,
they can be used to kill or injure enemy troops. They may also
force the enemy to take countermeasures--such as troop
dispersal or decontamination--to protect against the harmful
effects of the weapons, thereby reducing the combat
effectiveness of enemy forces. In addition, the use of chemical
weapons may be deliberately calculated to overburden an enemy's
medical services or to disrupt logistical operations. The
following chart provides a number of illustrative uses for
chemical weapons. It is drawn from a 1993 Congressional Office
of Technology Assessment study, ``Proliferation of Weapons of
Mass Destruction: Assessing the Risks.''
TYPICAL WAR-FIGHTING USES OF CHEMICAL WEAPONS
------------------------------------------------------------------------
Mission Quantity
------------------------------------------------------------------------
Attack an infantry position:
Cover 1.3 square kilometers of territory 216 240-mm rockets (e.g.,
with a ``surprise dosage'' attack of GB delivered by 18 12-tube
(Sarin) to kill 50% of exposed troops. Soviet BM-24 rocket
launchers, each carrying 8
kilograms of agent and
totaling 1,728 kg of
agent).
Prevent launch of enemy mobile missiles:
Contaminate a 25-square-kilometer missile 8 F-16s or MiG-23s, each
unit operating area with 0.3 tons of a delivering 0.9 tons of VX
persistent nerve gas, such as VX, per (totaling 7.2 tons).
square km.
Immobilize an air base:
Contaminate a 2-square-kilometer air base 1 MiG-23, or any similar
with 0.3 tons of persistent nerve agent attack aircraft, with six
(VX) twice a day for 3 days. sorties.
Defend a broad front against large-scale
attack:
Maintain a 300-meter-deep strip of 65 metric tons of agent
persistent nerve agent contamination in delivered by approximately
front of a position defending a 60 13,000 155-mm artillery
kilometer wide area for 3 days. rounds.
Terrorize populations:
Kill approximately 125,000 unprotected 8 MiG-23s, each delivering
civilians in a densely populated (10,000 0.9 tons of VX (totaling
per square km) city. 7.2 tons) under optimum
conditions.
------------------------------------------------------------------------
From these illustrative examples, it is apparent that in
many instances a small quantity of chemical agent is all that
is required to achieve a militarily significant objective. Less
than 2 tons of persistent nerve agent would be required to
immobilize an airfield. Just 65 tons of VX, used to effect,
could immobilize a 60 kilometer front for three days.
Moreover, a number of trends continue to lessen the
quantity required for ``military significance.'' First, with
developments in the field of precision-guided munitions
(PGM's), much less chemical agent will be required. Common
artillery shells and many other non-precision systems have a
circular error probable of more than several hundred meters. In
order to ensure adequate coverage of a military objective--for
example, using persistent nerve agent to close down an
airfield--a far greater number of weapons and agent would be
required than with ``smart'' munitions.
Second, technology itself drives the development of toxins
and chemicals that are increasingly deadly in ever smaller
quantities. We are very concerned over mounting evidence that
Russia continues to pursue the development of new chemical
agents in its binary chemical weapons program. In mid-February,
1995, Dr. Vil Mirzayanov, former chief of counterintelligence
at the State Union Scientific Research Institute for Organic
Chemistry and Technology, alleged that the Soviet Union
developed, tested, and produced a new class of nerve agents
five to eight times more lethal than any other known chemical
agent. The Russian government has not been forthcoming about
either ``Substance A-230,'' ``Substance 33,'' or ``Substance A-
232.'' According to Mirzayanov, the Russian Federation may
continue work on these programs. Clearly, in some cases,
smaller quantities of a novel, highly lethal agent would be
required to achieve a militarily significant objective than
would be the case with a more traditional agent.
Third, use of chemical weapons as a method of warfare does
not necessarily depend upon chemical saturation of military
targets. While progress has been made in the development of
chemical protection equipment, such gear remains bulky and
debilitating, restricts movement and work, and causes
identification problems, heat stress, dehydration, sweat build-
up, and breathing resistance. Chemical rounds interspersed
judiciously with other conventional rounds would require the
donning of protective gear and would degrade significantly an
opponent's capability. At the dawn of an age of ``information
warfare''--where computers shape the modern battlefield--the
difficulty of typing on a computer keyboard while wearing
protective gloves illustrates the potential military
significance of chemical weapons.
Riot control agents
Some chemicals--such as tear gas, vomiting agents, and
psychochemicals--are used as riot control agents (RCA). In
1975, President Ford signed Executive Order 11850, which
defines current U.S. policy on the use of RCA's. Pursuant to
the current executive order, military authorities are
authorized to use RCA's to minimize military and civilian
casualties under four broad scenarios, which include the
following specific circumstances:
Where combatants use civilians as shields (U.S.
forces in Mogadishu used tear gas in such an
environment);
Against rioting enemy prisoners of war;
During search-and-rescue operations involving
hostages, U.S. POWs, and downed aircrews;
In support of rear area operations;
In support of base defense;
In support of non-combatant evacuation operations;
In support of crowd control; and
In support of operations to protect or recover
nuclear weapons.
The Clinton administration, however, intends to rewrite
Executive Order 11850 to exclude two of the four scenarios. On
June 23, 1994, President Clinton declared that:
* * * according to the current international
understanding, the CWC's prohibition on the use of RCAs
as a ``method of warfare'' also precludes the use of
RCAs even for humanitarian purposes in situations where
combatants and noncombatants are intermingled, such as
the rescue of downed air crews, passengers and escaping
prisoners and situations where civilians are being used
to mask or screen attacks.
While Article I of the CWC certainly prohibits the use of
riot control agents (RCA) as a ``method of warfare,'' we are at
a loss to see how the administration can cite a ``current
international understanding'' as justification for further
restriction of the U.S. military's ability to use tear gas.
Both the Chairman of the Joint Chiefs of Staff, General John
Shalikashvilli, and then-Deputy Secretary of Defense, John
Deutch, admitted in testimony before the Senate Armed Services
Committee on August 11, 1994, that ``neither the CWC nor the
formal negotiating record define method of warfare.''
We reject the notion that any ``international
understanding'' on this issue could have existed at the time of
the CWC's signing. Indeed the negotiating record is
deliberately silent because of a lack of international
agreement. According to General Shalikashvilli, who provided a
written response for the record to a question posed by Senator
Nunn on August 11, 1994:
During the CWC negotiations, the U.S. delegation in
Geneva believed that the phrase ``method of warfare''
could be interpreted as permitting all the uses of
RCA's provided in Executive Order 11850. In Washington,
some agencies were concerned that the delegation's
interpretation was ``easily contested,'' and that a
clear statement in the negotiating record preserving
all four uses was ``essential.'' However, such a
statement was not supported by our close allies, some
of whom made clear that if the U.S. view was put
forward, their view that the CWC prohibited all
battlefield uses of RCA's would also be placed on the
record. At that point, ``to best protect our position''
against a more damaging negotiating record, the U.S.
delegation was directed to accept the provision without
a negotiating record statement.
We agree with Senator Nunn, who stated in a written question on
August 11, 1994:
Dr. Deutch, the CWC does not prohibit the use of Riot
Control Agents (RCA's) as defined in Executive Order
11850, in fact, the committee understands that the
phrase ``method of warfare'' was chosen because of its
constructive ambiguity--that is, there is no commonly
accepted definition for ``method of warfare.'' The
committee also understands that the U.S. signed the CWC
in Paris with the understanding that the treaty allowed
for the use of RCAs as defined in Executive Order
11850.
The administration has justified its decision to issue a
new Executive order on RCA's by citing concerns over a negative
reaction from U.S. allies. General Shalikashvilli told the
Armed Services Committee on July 11, 1994, that a new Executive
order must be issued since a unilateral U.S. decision to retain
E.O. 11850 ``could cause serious divisions with key allies
whose cooperation is essential to the CWC.'' Yet when the
Department of Defense queried the British Embassy in June 1995
on the extent to which U.S. retention of the current Executive
order would affect British ratification of the CWC, the Embassy
responded emphatically in a letter on July 6, 1995, from Hugh
Philpott:
I understand that the RCA issue in the context of the
CWC is still live. I would like to take this
opportunity to restate the position of the U.S.
Government, which has not changed since correspondence
between HM Chief of Defence Staff and General Powell in
1992 and Ministry of Defence Undersecretary Omand and
Mr. Slocombe last June. The enclosed speaking note
covers the ground.
The talking points supplied by Mr. Philpott further stated that
``Although we cannot rule out Parliamentary interest in the
U.S. debate when our bill is introduced, [there is] no question
of any linkage by HMG between U.S. position and our own
ratification process.'' In light of this letter, we cannot but
conclude that differences in interpretation of the RCA issue,
while marked, would not have contributed to a ``serious''
crisis in cooperation on CWC issues between the United States
and the United Kingdom.
More importantly, we are concerned that the Clinton
administration has adopted an interpretation on RCAs that is
contrary to that held by the Bush administration during the
final negotiation and signing of the Convention, and contrary
to the views of the U.S. military leadership. Again, according
to General Shalikashvilli:
Nevertheless, during the negotiations and at the time
the CWC was signed in January 1993, it was the
understanding of the service Chiefs that Executive
Order 11850 would be preserved intact, and that a
statement to this effect would be made by the
administration during the ratification. In July 1993,
the CINC's were informed of the review of the impact of
the CWC on E.O. 11850 and were asked for their
requirements for the use of RCAs. The CINC responses
remained consistent and they insisted on preserving the
ability of field commanders to use RCAs in accordance
with the provisions contained in Executive Order 11850.
Despite this determination, made by senior U.S. military
leaders, the Clinton administration decided that two of the
four scenarios in the executive order--rescue of a downed pilot
and civilians screening combatants--were inconsistent with the
``current international understanding.'' According to the
Chairman of the Joint Chiefs, ``the CINC's were informed of
this decision.''
The administration's interpretation of the CWC, against the
advice of the CINC's, will reduce U.S. capabilities in several
types of military operations, such as search and rescue
missions (where tear gas is used to protect helicopters from
ground fire and surface-to-air missile threats), may
consequently endanger the lives of U.S. personnel, and may
force the United States to resort to lethal responses in other
circumstances. We urge the Senate to reject ratification of the
Convention unless the resolution of ratification contains a
provision affirming and preserving the right to use RCA's in
all circumstances currently permitted under Executive Order
11850. This was the intent of the Bush administration, and the
understanding held by the CINC's at the time of the signing of
the CWC in 1993.
Nonlethal weapons
Additionally, we are concerned that the CWC may restrict
the development and employment of nonlethal weapons. Some
nonlethal weapons currently envisioned are chemical compounds,
though they are not traditional chemical warfare agents or riot
control agents. For example, several novel, immobilizing agents
may be developed from opioids derived from the fentanyl or
medetomidine families.
The CWC defines chemical weapons as ``toxic chemicals and
their precursors, except where intended for purposes not
prohibited under this Convention, as long as the types and
quantities are consistent with such purposes.'' A toxic
chemical is further defined as ``any chemical which through its
chemical action on life processes can cause death, temporary
incapacitation, or permanent harm to humans or animals.'' As a
result of this definition, we are concerned that the
development of nonlethal weapons that produce temporary
incapacitation through chemical processes, rather than physical
properties, will be constrained under the CWC. We urge the
Senate to ensure that this will not be the case.
Deterrence in the post-cold-war world
The United States will abandon, with the CWC, the ability
to deter the use of chemical weapons against the United States
and its allies with the threat of retaliation-in-kind. General
William Burns, then-Director of the Arms Control and
Disarmament Agency, stated in testimony before the Committee on
January 24, 1989:
It is very difficult to prove when a deterrent works,
but in this particular case, the United States has not
been attacked by chemical weapons since it has had its
stockpile. So, that one must at least suggest that this
is due, to some extent, to having a stockpile.
The problem I see right now in eliminating our
stockpile unilaterally is the signal that would give to
the rest of the world. Now, you could argue that it is
a very positive signal--the United States has taken the
lead in eliminating stockpiles unilaterally. You could
also take it as a sign of weakness, a sign that the
United States, for reasons not germane to arms control,
not germane to a ban on chemical weapons, decided not
to pursue binaries.
J.D. Crouch, former Deputy Assistant Secretary of Defense for
International Security Policy during the Bush administration,
echoed the view put forward by General Burns in his testimony
before the Committee on March 13, 1996:
Indeed, the historical evidence of where CW was used
and where it was not used since the Geneva Protocol
went into force strongly suggests that the ability to
retaliate in kind is the best deterrent of chemical
attack. Only once since World War I have chemical
weapons been used in any significant way by states that
both possessed a CW capability: the Iran-Iraq war. In
this case, Iraq quite probably felt it had a major
advantage over the Iranians in its offensive CW
capability, in terms of numbers, sophistication of its
agents, deployment means, and protection equipment and
training.
Until 1991, the U.S. relied upon a defensive doctrine which
incorporated two elements: (1) maintenance of a chemical
weapons stockpile for use in retaliation and to ensure that
potential users of chemical weapons would be forced to adopt
defensive measures that would degrade their operational
capabilities; and (2) reliance upon a robust defense
capability. With respect to the former, the U.S. position in
multilateral negotiations on a chemical weapons ban reflected
the desire to maintain a chemical deterrent as a pillar of the
U.S. defense doctrine.
Indeed, the 1990 Bilateral Destruction Agreement with
Russia specifically allowed retention of 5,000 metric tons (500
metric tons if the CWC were ratified) of chemical agent for use
as a deterrent. Similarly, the U.S. had favored in negotiations
on the CWC retention of the 500 metric ton deterrent until all
chemical weapons-capable countries had joined the Convention.
That deterrent, it was decided, would be comprised of binary
weapons. According to information on the U.S. chemical weapons
stockpile declassified on January 22, 1996, the United States
currently possesses 680.19 metric tons of binary components
(roughly approximating a 500 ton, binary deterrent) and
30,599.55 metric tons of unitary agent.
However, after the Gulf war, President Bush altered U.S.
policy and committed to the elimination of the U.S. unitary
chemical weapon stockpile. The Bush administration also adopted
an initiative to forswear any chemical weapons retaliatory
capability if and when the CWC entered into force. Walter
Slocombe, Deputy Undersecretary for Policy, Department of
Defense, elaborated the U.S. policy to the Committee on May 13,
1994:
In March, 1991, the United States reenergized those
negotiations [on the CWC] by announcing that to
demonstrate United States commitment to banning
chemical weapons, we are formally forswearing the use
of chemical weapons for any reason, including
retaliation, against any State, effective when the
convention enters into force, and will propose that all
States follow suit.
During testimony before the Senate Armed Services Committee
on August 11, 1994, the Administration further clarified the
current U.S. position:
Under current policy, U.S. forces may use chemical
agents or weapons only in retaliation to chemical
weapons use against the United States or its allies.
Upon entry into force of the CWC, the United States
obligates itself to forswear retaliation-in-kind and
adopt a policy of no use under any circumstances.
We are concerned that the Clinton administration, in explaining
the rationale for the policy shift during the Bush
administration, cited the U.S. experience during the Gulf war
as proving that retaliation-in-kind was not required to deter
Iraqi use of chemical weapons. The Chairman of the Joint Chiefs
of Staff, General John Shalikashvilli, testified before the
Senate Armed Services Committee on August 11, 1994:
Desert Storm proved that retaliation in kind is not
required to deter the use of chemical weapons. Should
deterrence fail, a chemical attack against U.S. forces
would be regarded as an extremely grave action subject
to an appropriate non-chemical response of our
choosing.
The same testimony was given before the Foreign Relations
Committee. On August 11, 1994, General Shalikashvilli further
clarified the nature of the deterrent communicated to Iraq
during Desert Storm in a response to a question asked by
Senator Exon:
I agree that the Iraqis may not have been sure what
type of force would have been used in retaliation of
their use of chemical weapons. Only Saddam Hussein can
tell why he chose not to use chemical weapons.
* * * The type of retaliation we threatened was left
deliberately vague, although advanced conventional
weapons were the most credible deterrent.
However, we note that Walter Slocombe, Deputy Under Secretary
of Defense for Policy, had testified before the Foreign
Relations Committee on May 13, 1994 that:
The position of the United States at that time [of
the Gulf war] was not to specify how we would retaliate
but to make clear that it would be a very powerful and
effective response. At that point it could, in
principle, have included chemical weapons. We did not
rule out that possibility. The convention, of course,
would rule out the possibility. [emphasis added].
Because the Bush administration had not removed chemical
weapons from the list of available retaliatory options at the
time of the Gulf war, we believe it is incorrect to suggest
that Desert Storm serves as proof that the U.S. has no need for
a chemical weapons retaliatory capability. Moreover, the
security environment is no longer such that deterrence can be
postulated in a consistent, reliable framework--regardless of
the U.S. experience during the Gulf war.
An advanced conventional deterrent?
During testimony before both the Senate Committees on
Foreign Relations and Armed Services, the administration
suggested that advanced conventional weapons were the most
credible deterrent available to the United States. Aside from
such assertions, however, few convincing explanations on how
conventional capabilities might supplant other deterrent
options were forthcoming.
First, the very concept of deterrence implies that
capabilities are held in reserve for the purpose of punishing a
proscribed action. If the United States is to rely upon
capabilities such as precision-guided munitions to deter a
future aggressor from using chemical weapons, we wonder what
conventional capabilities the U.S. would truly be willing to
hold in reserve in a future conflict.
The assertion that the United States could mount a
devastating conventional retaliation for the use of chemical or
biological weapons may be belied by mounting evidence that
budgetary cuts have seriously eroded the ability of the Armed
Services to fulfill the national military strategy. On February
15, 1995, General George Joulwan, Commander in Chief of U.S.
European Command, noted that the wargame ``Nimble Dancer''
conducted by the Pentagon demonstrated that the U.S. could
successfully prosecute two major regional conflicts (MRC's),
but only if all of the maximum force requirements specified in
the Bottom-Up Review were available. Significantly, Nimble
Dancer relied upon the availability of force enhancements, such
as precision-guided munitions, which will not be available for
another decade--at the earliest.
Other wargames conducted by the military services have
raised even more troubling questions as to whether, in the
event of two MRC's, the United States would be able to hold any
advanced conventional weaponry in reserve for use as a
deterrent. The Naval Logistics 2001 wargame conducted in the
spring of 1994 raised the specter of ordinance shortfalls in
the event of two nearly simultaneous conflicts. Using a model
for U.S. force structure based upon current expenditure
profiles, the wargame was designed to determine the extent to
which two MRC's could be supported, the impact that industrial
preparedness would have upon the conduct of the conflicts, and
the amount of time required for regeneration and reconstitution
of military forces following the termination of conflict.
Notably, the U.S. military suffered from insufficient
numbers of stand-off weaponry and shortages in ground force
munitions. As a result of a number of factors which included
funding limitations, cold production lines, delivery lag times
of between 13 to 36 months, limits on productive capacity, and
a general decline in the defense industrial base, both the
sustainability of operations and the ability of the industrial
base to reconstitute forces within a 7-year time frame were
called into question.
Most recently, in connection with concerns associated with
an underground Libyan chemical weapons plant, it was widely
reported in the press that the U.S. military does not currently
possess nonnuclear, Earth-penetrating munitions capable of
destroying the facility. A series of tests conducted at White
Sands Missile Range revealed that new, void-penetrating smart
fuse weapons were incapable of destroying underground targets
such as the Libyan chemical weapons plant. Without such a
capability, according to Harold Smith, Assistant to the
Secretary of Defense for Nuclear, Chemical and Biological
Programs, nuclear weapons remain the only available option to
totally destroy Tarhunah. Smith recently stated in an interview
with the press that ``it is not clear we have the capability
today to literally take that plant out of action for the
indefinite future.''
In sum, the suggestion that the United States has the
capability, under any and all circumstances, to hold in reserve
a punishing advanced conventional deterrent ignores growing
evidence that the U.S. military does not have enough advanced
conventional weaponry to fulfill the national military
strategy, let alone to deter use of weapons of mass
destruction. Shortfalls in force enhancements, particularly in
PGM's, render likely the fact that one major regional
contingency would absorb the lion's share--if not all--of the
active U.S. military inventory. Even the relatively robust
industrial base of the early 1990's was unable to provide
sufficient numbers of some specific munitions throughout the
course of the air campaign over Kuwait. By the end of the war,
the cupboards were bare.
Second, we are concerned to know what additional target
sets might be attacked if conventional forces are to be used in
response to a chemical or biological attack. Would conventional
forces be used against nonmilitary targets? How could such a
threat be communicated to a future aggressor prior to their use
of weapons of mass destruction? It would seem open to question
as to whether a state would be deterred from using such
capabilities if the United States is already using its
deterrent against it in a conflict, or if the United States has
already targeted the country's infrastructure on a large scale.
The United States will continue to be posed with a context-
specific problem of determining who is to be deterred and how.
National objectives and strategic cultures will prove critical
variables affecting such determinations. These variables will
ultimately shape the utility of a conventional deterrent. Some
countries inclined to use chemical and biological weapons may
not be deterred by the threat of massive conventional
retaliation directed against its conventional order of battle.
Indeed, the number of main battle tanks, armored fighting
vehicles, and artillery that an aggressor fields may be less
important to a future opponent than other imponderables.
Finally, the way a country seeks to shield its valued
capabilities from the United States--presumably among civilians
or hostages--will also create problems for any deterrent. We
believe that, in the future, deterrence will require additional
flexibility rather than less. Unless the U.S. possesses
flexibility in its options, we may find ourselves unable to
deter countries under some circumstances.
In an April 19, 1996 response to a question submitted for
the record, the administration stated that the United States
has had a long-standing policy ``not to specify in advance what
response we would make to CW [chemical weapons] use against the
United States, its forces or its allies; however, we would
consider all options and our response would be absolutely
overwhelming and devastating.''
While we are heartened by such a declaration, we do not
believe the Senate should agree to any arms control treaty
which effectively forecloses retaliatory options to the United
States but not to other countries, either because they have not
signed on to the treaty or because they are not abiding by it.
Accordingly, we urge the Senate to insist that unless and until
the United States may be assured that chemical weapons will not
be used against our troops, citizens, or our allies, the U.S.
should retain the option to retaliate-in-kind. The Senate
should stipulate, in no uncertain terms, that in the event that
another States Party to the Convention uses chemical weapons
against the United States or its allies, the Convention shall
cease to be binding upon the United States with respect to use.
The U.S. Senate first adopted such a reservation to the
1925 Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous or Other Gases, and of Bacteriological
Methods of Warfare (the 1925 Geneva Protocol). That proviso,
still in effect today, generally states that if another Party
to the Geneva Protocol uses chemical weapons against the United
States or its allies, the Protocol will cease to be binding on
the United States. Such an approach, taken with the CWC, would
recognize the contribution made to deterrence and to our
national security by the maintenance of options and strategic
ambiguity.
Because we are concerned that a number of chemical weapons
possessor states have neither signed nor ratified the
Convention, we also believe it advisable for the Senate to
require Presidential certification, prior to the destruction of
the last 500 metric tons of binary agent, that all states that
have ever possessed or sought to develop chemical weapons have
ratified and are abiding by the terms of the Convention. In the
event that such a certification is impossible, we believe the
administration should consult urgently with the Senate over the
fact that countries still continue to possess chemical weapons
while the United States is contemplating complete elimination
of its stockpile.
A nuclear deterrent?
There is no question that U.S. ratification of the CWC
ultimately will void the U.S. formally of a capability to
respond in kind. Debate in the Committee centered over the
advisability of doing so, and the efficacy of alternative means
of deterrence. During the Committee's consideration of the CWC,
the administration did not clearly articulate how a new U.S.
deterrence policy would work. On March 28, 1996, Senator Pell
questioned Secretary of Defense William Perry about what the
U.S. response would be to a chemical weapons attack upon the
United States military. Senator Pell indicated that the U.S.
had but two alternatives: ``conventional and nuclear. There is
not much else.'' Secretary Perry responded by saying: ``The
whole range would be considered; that is correct.''
We are concerned that this statement suggests a far greater
range of options than actually may be available. In the first
instance, biological weapons are no longer an option--having
been foresworn with U.S. ratification of the Biological Weapons
Convention. Nor would chemical weapons be an option with
ratification of the CWC. The third option--an advanced
conventional deterrent--would seem to have a number of
liabilities. This would seem to point to nuclear weapons as the
most likely retaliatory option at the disposal of the United
States.
Certainly the administration refused to either rule in or
rule out reliance upon a nuclear deterrent in written responses
to questions submitted by the committee for the record. The
ambiguous response submitted to the committee on April 19, 1996
stated:
There has been no change in U.S. policy on negative
security assurances * * * Secretary Perry's March 28
statement simply reaffirmed that the United States
would consider all options in response to a CW attack
upon the United States, its forces or allies, and that
our response would be absolutely overwhelming and
devastating. This statement and others made by
Administration witnesses during testimony in support of
the CWC ratification was meant to make clear that U.S.
renunciation of chemical weapons does not diminish our
ability to deliver a devastating response to the use of
chemical weapons against the United States, its forces,
or allies.
But if the administration truly contemplates nuclear
retaliation for chemical weapons use, such might be at odds
with a long-standing U.S. commitment to not use nuclear weapons
against a non-nuclear weapons state. On August 4, 1994, the
Director of the Arms Control and Disarmament Agency reiterated
U.S. policy on negative security assurances to the Conference
on Disarmament, saying:
The U.S. presidential commitment stands. Our
unilateral commitment stresses that assurances will be
provided to non-nuclear states that are parties to the
NPT or any comparable internationally binding
commitment not to acquire nuclear explosive devices,
such as the Tlatelolco Treaty, unless the U.S. is
attacked by that non-nuclear weapon state in alliance
with a nuclear weapon state.
According to such a political commitment, the U.S. will not
threaten use of nuclear weapons against any country that does
not have nuclear weapons and is not allied to a nuclear weapon
state. For instance, a nuclear deterrent may not be
communicated to Iran, which is a party to the NPT.
Furthermore, in signing the Protocols to the African
Nuclear Weapons Free Zone Treaty, the administration has set
upon a course that would legally prevent the United States from
threatening or using nuclear weapons against any country in the
zone. In such a web of international agreements, the U.S. could
very well find itself unable to deter with the threat of
nuclear retaliation a country such as Libya--which has neither
signed nor ratified the CWC--from using chemical or biological
weapons.
How can the U.S. consider a ``whole range'' of options if
it has foregone two--chemical and biological--because of
treaties, does not possess enough of one--conventional--because
of budgetary constrains, and foresworn the last--nuclear--
because of a political commitment? It may be more accurate to
state that, with the CWC, the U.S. will have but one, as of yet
undeveloped, means by which to deter attack by chemical
weapons. That is, unless the U.S. is to reconsider a long-
standing negative security assurances policy. In sum, the
United States may be forgoing flexibility in its deterrent
posture at the very time that such latitude may prove
increasingly vital.
We believe, in order to communicate a credible deterrent,
the Administration must reevaluate its negative security
assurance policy to determine whether the United States should
still provide guarantees that it will not use nuclear weapons
against a nonnuclear weapons state, even if that state uses
chemical weapons against the U.S. military, U.S. citizens, or
allies. The Senate should require the administration to resolve
these concerns by requiring the President to submit a clearly
defined deterrence strategy to the Congress before the U.S.
accedes to the CWC and forgoes one more option.
Credibility of the nuclear deterrent
Additionally, we are concerned that domestic constraints
also may rule out nuclear retaliation under some circumstances.
This is troubling since, in order to deter attack upon the
United States or our allies, the U.S. must be willing to use
its deterrent if attacked. Moreover, that willingness must be
perceived by any would-be aggressor contemplating the use of
chemical weapons. The fundamental concern in this regard
relates to the willingness of any U.S. President to consider
the full range of options available for retaliation. The
comparative effects of nuclear weapons use are so much greater
than chemical weapons use, in orders of magnitude, that under
many circumstances nuclear retaliation would prove far
disproportionate to a chemical weapons attack.
An April, 1996, assessment by the Office of the Secretary
of Defense entitled ``Proliferation: Threat and Response,''
provides a comparison of nuclear, biological, and chemical
damage contours which demonstrate the dramatic differences in
effect between each type of weapon:
Put into a regional context, the differences in effect
between nuclear and chemical retaliation are marked. According
to Anthony Cordesman, using a SCUD-sized delivery vehicle with
a maximum payload of 1,000 kg against a target with a
population density of between 3,000 and 10,000 people per
square kilometer (a density typical, for example, to urban
centers in the Middle East), the following effects would be
had:
COMPARATIVE EFFECTS OF CHEMICAL, BIOLOGICAL, AND NUCLEAR WEAPONS
[From Ratifying the Chemical Weapons Convention]
------------------------------------------------------------------------
Area covered
(km\2\) Fatalities
------------------------------------------------------------------------
Chemical: 300 kg of Sarin nerve
agent with a density of 70
milligrams per cubic meter....... 0.22 60-200
Biological: 30 kg of anthrax
spores with a density of 0.1
milligrams per cubic meter....... 10 30,000-100,000
Nuclear (tactical): One 12.5
kiloton nuclear device achieving
5 pounds per cubic inch of over-
pressure......................... 7.8 23,000-80,000
Nuclear (Strategic): One 1 megaton
hydrogen bomb.................... 190 570,000-1,900,000
------------------------------------------------------------------------
Given the disproportionality of a nuclear deterrent, we are
concerned that even in the worst-case scenario, there may be a
tremendous reluctance on the part of the United States to even
threaten the use of nuclear weapons. While any nuclear response
truly would be ``absolutely overwhelming and devastating,''
that very fact raises the possibility that domestic political
constraints may limit exercise of this option.
On March 13, 1996, J.D. Crouch, former Deputy Assistant
Secretary of Defense for International Security Policy during
the Bush Administration, testified that:
I recall the difficulty that the Bush Administration had
during the Gulf War to make clear publicly and privately to the
Hussein regime that any use of Iraqi CW or BW could result in a
U.S. nuclear response.
The difficulty associated with threatening nuclear
retaliation for chemical weapons use derives from the fact that
use of nuclear weapons would represent a quantum leap up the
escalatory ladder. In ratifying the CWC, the United States
would, in effect, remove another link from the chain reaction
of nuclear deterrence. In conflict, escalation control will
prove correspondingly difficult because all flexibility will
have been removed from the U.S. retaliatory response.
We believe the lack of an extended deterrent capability may
become exceedingly dangerous as the United States finds itself
facing opponents armed not just with chemical weapons, but with
their own nuclear capability. A number of countries with
aggressive chemical weapons programs are also actively seeking
nuclear weapons. Iran and North Korea are but two countries
that may possess both in the foreseeable future. Indeed, the
Russian Federation and the People's Republic of China already
possess nuclear and chemical weapons capability, and both have
ongoing biological programs as well. We wonder how effective a
nuclear deterrent may be if the United States finds itself
engaging even a minimally armed nuclear power.
Capability of the nuclear deterrent
If the United States places greater demands upon our
nuclear force by expanding the scope of its deterrence
missions, it will do so at a time when the U.S. Navy
essentially has been tactically denuclearized and the U.S. Army
has been completely divested of a battlefield nuclear
capability. The then-Chairman of the Joint Chiefs, General
Colin Powell, stated in 1993 that ``The Navy, the Marine Corps,
and the Army now totally rely on the Air Force for any
potential nuclear weapons they need on the battlefield.'' As a
result of General Powell's initiative, the only latent tactical
nuclear capability residing in the U.S. Navy is aboard
submarines, which carry Tomahawk cruise missiles. At the same
time, NATO's tactical nuclear stockpile has been reduced from
10,500 to 1,500 weapons.
These trends led J.D. Crouch to observe in testimony before
the Committee on March 13, 1996:
* * * it is unlikely that we would deploy those
tactical nuclear assets with our conventional forces in
a crisis, leaving us, I think, a very inappropriate
threat of strategic nuclear forces, which would raise a
serious concern about a Russian or Chinese reaction to
a launch, or even the threat of the use of those
forces.
The United States has vastly scaled back its strategic
nuclear capabilities. The United States has already committed
to the START II Treaty, which will require deep reductions in
U.S. strategic forces. Secretary of Defense William Perry
testified before the committee that the U.S. allocation of
3,500 warheads under START II:
* * * will be divided among ICBM, SLBMs and the bombs
and warheads on our bombers. An approximate disposition
of this force would be 500 ICBM warheads, fewer than
1,700 SLBM warheads, and approximately 1,300 warheads
on bombers * * * Based on present planning, that is the
way we would distribute our forces under START II. I
believe this would be, of course, entirely capable of
carrying out our mission of strategic deterrence.
We are troubled that, with no new strategic systems under
development, the United States now may be forced to call upon
an aging fleet of strategic nuclear delivery vehicles to
respond to chemical weapons attack, as well as to serve as a
nuclear deterrent. Moreover, the creation of a new deterrence
mission for the U.S. strategic force creates the potential for
an expansion in the number of targeting requirements at
precisely the same time that the U.S. strategic arsenal is
being dramatically reduced, thereby threatening the START II
equilibrium between targets and strategic capability.
The need for robust passive and active chemical defenses
As has been noted, the United States has long relied upon a
defensive doctrine which included as paramount the need for a
robust chemical defense capability. In testimony before the
Committee on June 23, 1994, General Shalikashvilli stated:
First, a chemical weapons defense program is
essential not only to protect U.S. forces but also to
ensure their combat effectiveness in a chemical
environment. A well trained and protected force is not
as vulnerable to a chemical weapons attack as a force
lacking these essential attributes.
Amoretta Hoeber, former Deputy Undersecretary of the Army
during the Reagan Administration, testified on March 13, 1996,
that:
Today, I think our defense capability is adequate. I
am very concerned, however, about the trends. The
trends are negative. They are towards the direction of
reducing the adequacy of our defensive posture. Let me
make three points on that:
First off, financially. It requires not a great deal.
It requires perhaps about half a billion dollars a year
out of the entire defense budget to maintain an
adequate defense capability. The trend is towards
reducing that amount. The Pentagon is asking for less
because they believe that the [CWC] Treaty will solve
part of their problem * * *
Secondly, our training capability is going down with
the loss of Fort McClellan.
And, thirdly, of course, the intelligence capability
will need to be beefed up considerably, in order to
keep the defense up-to-date. Because you have to keep
abreast of new developments in agents and capabilities.
* * * If we do not, I think we are encouraging any
opponent to develop a capability and use it against us.
Passive chemical and biological defenses
We are concerned that, despite Administration testimony
indicating commitment by the Department of Defense to a robust
chemical defense capability, a March 1996 study by the General
Accounting Office (GAO) found that some elements of the U.S.
military may not be adequately prepared, trained, or equipped
to protect against the use of chemical or biological agents.
Some of the most significant findings of the study were
that none of the Army's five active divisions which made up the
crisis response force, nor any of the early deploying reserve
units in the Gulf war, were properly equipped to deal with a
chemical or biological threat. All had shortages of critical
equipment. In fact, three of the divisions had 50 percent or
greater shortages of protective clothing. Shortages of other
critical gear ran as high as 84 percent, depending on the item
in question.
During the Gulf war, many Army medical units had on hand
only about 50 to 60 percent of authorized patient treatment
kits and decontamination kits. Some of the kits that they did
have were missing such critical components such as drugs for
treating chemical casualties. They further lacked the equipment
needed to treat patients in a chemically or biologically
contaminated area.
The March 1996 study also found serious training and
readiness problems in both the Army and Marine Corps. Analysis
of Army readiness evaluations revealed a wide variety of
problems, including inability to properly don protective gear,
improper deployment of detection equipment, and failure to
integrate chemical and biological issues into operational
plans. Marine Corps units are affected by many similar
problems, including untimely submission or warning reports,
inexperience with detection equipment, and improper response to
chemical attacks. Under the Joint Staffs Status of Resources
and Training System (SORTS) each unit in the U.S. Armed
Services is required to report on its readiness, as well as
extent to which they possess the required resources and are
trained to complete their wartime mission. The reports are
troubling. One early deploying Army division, for instance, has
been rated C-4 in terms of chemical and biological equipment
readiness. The following table is drawn from the GAO
assessment:
------------------------------------------------------------------------
2d Army 5th Army
(percentage of (percentage of
Task units units
inadequately inadequately
trained) trained)
------------------------------------------------------------------------
Donning protective masks:
Active.............................. 39 50
National Guard...................... 57 88
U.S. Army Reserve................... 84 81
Decontamination:
Active.............................. 33 10
National Guard...................... 61 60
U.S. Army Reserve................... 48 75
School-trained NBC officer
Active.............................. 5 17
National Guard...................... 31 34
U.S. Army Reserve................... 35 19
Preparing for a chemical attack:
Active.............................. 67 23
National Guard...................... 77 50
U.S. Army Reserve................... 50 60
Responding to a chemical attack
Active.............................. 63 15
National Guard...................... 53 67
U.S. Army Reserve................... 56 60
Integrating chemical and biological
tasks into training:
Active.............................. 26 0
National Guard...................... 31 35
U.S. Army Reserve................... 29 40
------------------------------------------------------------------------
Note: The 2d Army was subsequently consolidated with the 1st Army, as
the 5th Army was consolidated with the 6th Army.
In light of these findings, we are concerned that a future
conflict could expose U.S. forces'' lack of preparedness to
defend against chemical and biological agent attacks and what
seems to be a pattern of reliance on post-mobilization
activities to overcome chemical and biological defense
readiness problems. U.S. forces are not fully prepared to
defend against the use of chemical weapons, and needless
casualties and a degradation of U.S. operational capability may
result from any such use.
These problems, first brought to light in 1991, are likely
to continue given contemplated reductions in funding and an
inadequate military emphasis on chemical and biological
defense. The Department of Defense allocates less than 1
percent of its budget to chemical and biological weapon defense
activities, and yet annual funding for this area has decreased
by over 30 percent during the Clinton administration, from $750
million in fiscal year 1992 to $504 million in fiscal year
1995. Moreover, we are troubled with the recent plan put
forward by the then-Vice Chairman of the Joint Chiefs of Staff,
Admiral William Owens, to cut another $805 million from
counter-proliferation support and chemical and biological
defense programs through fiscal year 2001. Such a reduction
would cripple planned chemical and biological research and
development efforts, and delay the procurement of critical
technologies. Even though that initiative was defeated, at the
time of the committee's consideration of the CWC the Department
of Defense was nevertheless contemplating a reduction of at
least $33 million.
Such initiatives do not bode well for the maintenance of
robust chemical defenses. History suggests that Admiral Owens'
proposal may prove an opening salvo in an effort by some in the
military to redeploy funds for chemical weapons defense to
other priorities. Following ratification of the BWC, for
example, the United States cut research and development on
protection against biological agents by one-half. Regardless of
the CWC's entry-into-force, however, the U.S. military will
remain in need of improved protective gear, equipment,
decontamination capabilities, and training. This will remain
critical for the U.S. military given the fact that a number of
chemical weapons possessor states have not even signed the CWC,
and most other ratifiers are expected to keep their programs.
Finally, we are concerned that the CWC will constrain U.S.
protective efforts by limiting the production of chemicals
weapons for research on defenses to a single, small-scale
facility which cannot produce agent in large quantities or on a
continuous basis. Furthermore, this facility--and all areas
where U.S. Government research on protective measures using
Schedule 1 chemicals is occurring--will be subject to
inspections the number, intensity, duration, timing, and mode
of which are open-ended and based upon the OPCW's judgement of
``risk to the object and purpose of the Convention.'' This
raises the likelihood that ``routine'' Schedule 1 inspections
may be used by countries with active chemical weapons programs
to pursue intelligence collection about U.S. chemical weapons
defenses.
At a minimum, we urge the Senate to require the President
to detail annually to the Congress the administration's
priorities for the maintenance of robust, active and passive
chemical and biological defenses.
Active chemical and biological defenses
The chemical and biological weapons threat to the United
States is evolving and growing. The role of active defensive
systems in responding to this challenge deserves some comment.
J.D. Crouch, former Deputy Assistant Secretary of Defense for
International Security Policy during the Bush Administration,
testified on March 13, 1996, that he believed chemical weapons
defenses were ``adequate''
* * * at least as far as passive defenses are
concerned. I think that there is another realm here,
and that is active defense. The CW threat in many of
these states will be combined in the future with a
ballistic missile proliferation threat. And it seems to
me that this threat will begin to threaten our allies
first, and then, eventually, may threaten the United
States directly.
We do not have the ability to deal with this at
either the theater missile defense or the strategic
missile defense level. And I would say that, in that
case, we are woefully unprepared.
At the theater level, chemical weapons proliferation and the
spread of missile delivery vehicles will make the use of
forward-basing for U.S. forces increasingly difficult. The
likelihood will continue to grow that future potential
aggressors will seek to detect and engage U.S. crisis response
forces at their points of entry into theater. Indeed, several
countries may be seeing to acquire missile capability, missile
inventories, and chemical weapons with an eye to precluding the
U.S. military from any forward deployment that is unprotected
by active defenses, such as theater missile defenses. The
ultimate objective of some states may be to deter the U.S. from
intervening at all in a region in defense of its national
security interests.
We therefore view as critical the development of effective
theater missile defenses (TMD) to protect U.S. troops, and
continue to be concerned that the effectiveness and
capabilities of programs such as the Theater High Altitude Area
Defense, Navy Upper Tier, and Brilliant Eyes are being
constrained in such a way as to render U.S. troops more
vulnerable than need be the case, or than is acceptable, in the
turbulent post-cold war environment. In particular, some on the
committee are concerned that the administration is considering
an expansion of the 1972 Anti-Ballistic Missile Treaty's
limitations to include TMD systems through a joint declaration
with the Russian Federation.
We are further concerned that the proliferation of WMD and
ballistic missile technology has become so pronounced that the
possibility of a direct attack upon the United States
constitutes a present and growing danger. The then-Director of
Central Intelligence, James Woolsey, testified before Congress
in 1993 that more than twenty-five countries either possess or
are in the process of acquiring nuclear, chemical, or
biological weapons. In addition, he testified that thirty or so
countries already possess ballistic missiles, and nine Third
World countries, such as Egypt, India, Iran, Iraq, North Korea,
and Argentina, produce such missiles. Four more--Brazil, Libya,
Pakistan, and Syria--are seeking a productive capability.
Accordingly, it seems clear that the number of states with
ballistic missile arsenals continues to grow, and that a few
countries are looking to acquire large inventories.
The evidence also suggests that countries engaged in the
development of ballistic missiles are alarmingly willing to
collaborate with one another. There seems to be no other
convincing explanation for the fact that fourteen countries
around the globe field some type of Soviet-made missile. Both
Libya and Egypt, for example, have transferred missiles to
other countries. China has sold intermediate range missiles to
Saudi Arabia and missile technology to Iran, Syria, and North
Korea. Iran is collaborating with North Korea and Syria on
various missiles. It was widely reported in the press that
Russia had transferred whole ballistic missile components to
Iraq. Finally, North Korea reportedly is willing to supply both
missiles and missile production facilities.
Accordingly, we believe the United States urgently needs a
national missile defense. Limitations imposed by the 1972 Anti-
Ballistic Missile Treaty, however, prohibit the U.S. from
deploying a system capable of defending America against even
the most limited of ballistic missile attack.
B. IMPLICATIONS FOR INDUSTRY
The CWC is unprecedented in its requirement for data
declarations and intrusive, on-site inspections of private
facilities that produce dual-use chemicals. In assessing the
impact of the CWC upon U.S. businesses, it is most helpful to
begin with a review of the chemicals covered by the treaty. By
examining the types of chemicals to be regulated, it will
become readily apparent that the CWC will impose controls and
require information from a sizeable number of companies engaged
in a variety of industrial enterprises. The CWC will affect
chemical, automotive, biotechnology, pharmaceutical, paint and
varnish, electronics, textiles, food processing, soap and
detergent, and cosmetic companies, among many others.
What Substances Are Covered By the CWC?
Those toxic chemicals and biological agents regulated by
the CWC are identified in the three schedules (lists) contained
in the annex on chemicals. Chemicals are arranged according to
their importance to chemical weapons production and the extent
to which they are have legitimate, commercial applications.
Schedule 1 of the CWC lists chemicals developed for use as
chemical weapons, or for use as a precursor in the final stage
of development of a chemical weapon. Schedule 2 identifies
chemicals which are not produced in large commercial
quantities, and which could be used as a chemical weapon, or as
a chemical weapon precursor. Schedule 3 lists other chemicals
which have large commercial applications and which also have
been produced, stockpiled, or used as either a chemical weapon
or a chemical weapon precursor. Finally, the CWC will also
affect companies producing ``discrete organic chemicals''
(which is, essentially, any carbon compound).
Companies involved in the production (and in some cases,
use or consumption) of chemicals listed in Schedules 1, 2, 3
and discrete organic chemicals in quantities above the
thresholds specified in the CWC will be required to report
annually to the federal government. Most of these companies
must also be prepared to receive visits from foreign
inspectors.
Schedule 1
Schedule 1 lists chemicals and chemical compounds
presumably with few commercial applications. Item 1 of Schedule
1 is not simply the toxic chemicals Sarin and Soman, but rather
a formula which includes those two chemical weapons, along with
149 other compounds. Another item on Schedule 1, for example,
is a formula containing more than 5,000 compounds.
Even if their uses are limited, these chemicals and toxins
are essential for certain commercial applications. Some of
them, such as saxitoxin and ricin, are important research tools
for biochemical, pharmaceutical and toxicological research.
Advanced studies of nerve signal transmission would be
extremely difficult without access to saxitoxin. Other Schedule
1 chemicals may also have important medical applications. One
of the nitrogen mustards, HN2, has already been used under
names such as Caryolysine, Embichen and Nitrogranulogen for the
treatment of certain forms of cancer.
According to the Organization for the Prohibition of
Chemical Weapons (OPCW), other chemicals on Schedule 1 have
uses in pesticide and insecticide development and as flame
retardant additives to plastics, resins, and fibers.
Additionally, Ethylphosphonyl difluoride and Methylphosphonyl
difluoride have industrial uses in organic synthesis.
Schedule 2
Schedule 2 contains a significant number of chemicals that,
beside their possible use as precursors for chemical weapons,
have some commercial applications. Schedule 2 contains 7
individual compounds and 7 families of compounds. One item on
Schedule 2, for example, covers nearly 24,000 different
chemicals. The first listing on Schedule 2B contains all
compounds not on Schedule 1 which contain a phosphorous atom to
which is bonded one methyl, ethyl, or propyl group but no
further carbon atoms. This covers dozens--if not hundreds--of
chemicals, some of which have legitimate commercial
applications. The following table identifies just a few such
chemicals under this heading which have direct commercial
applications:
------------------------------------------------------------------------
Schedule 2B (4) Chemical Commercial Application
------------------------------------------------------------------------
Diethyl ethylphosphonate.................. Antifoaming agent, Heavy
metal extraction, gasoline
additive, plasticizer
Diethyl methylphosphonite, Dimethyl Organic synthesis
ethylphosphonate, Ethylphosphonous
dichloride, Ethylphosphonyl dichloride,
Methylphosphonous dichloride,
Methylphosphonous difluoride,
Methylphosphonyl dichloride.
Dimethyl methylphosphonate................ Flame retardant
------------------------------------------------------------------------
Also, Methylphosphonic acid and its derivatives all belong
to the first family of chemicals listed on Schedule 2B (4).
These chemicals are important starting materials for many
widely used products, such as glyphosate, which is used to
combat the water hyacinth, and glyphosine, which is used as a
chemical ripener for sugar cane. The dimethyl ester is used for
the production of flame retardant impregnations of textiles and
other items.
Schedule 2B (7), Arsenic trichloride, has many applications
as a starting material in organic synthesis, including the
production of some pharmaceuticals and insecticides. It is also
used in the ceramic industry. If it is not available some types
of ceramics cannot be produced.
Schedule 2B (8), 2,2-Diphenyl-2-hydroxyacetic acid is used
in organic synthesis.
Schedule 2B (9), 3-Quinuclidinol, is used as a hypotensive
agent, and in the synthesis of pharmaceuticals.
One of the more versatile chemicals is thiodiglycol,
Schedule 2B (9). It is extensively used, under various brand
names, as a carrier for dyes in the textile printing industry.
It has further applications in the manufacturing of some types
of plastics as well as a lubricant additive. Thiodiglycol is
also used as a solvent in ball-point pen ink.
Schedule 3
The main commercial use of most of Schedule 3 chemicals is
for production of various organic chemicals, ranging from
gasoline additives to pharmaceuticals, from detergents to
pesticides, and from flame retardants to dyestuffs. There are
17 compounds on Schedule 3.
Schedule 3A(4), Chloropicrin, has important uses for the
disinfection of cereals and grains, considerably increasing the
possible storage life. It is also used as a soil insecticide to
sterilize the soil before the planting of crops that are very
sensitive to weed competition.
Schedule 3B (5), Phosphorous oxychloride, is used as an
insecticide, as a chlorinating agent, flame retardant, gasoline
additive, hydraulic fluid, organic synthesis, plasticizer, and
as dopant for semiconductors.
Phosphorous trichloride, Schedule 3B(6), is used in
dyestuffs, surfactants, plasticizers, gasoline additives,
insecticides, and in organic synthesis.
Phosphorous pentachloride, Schedule 3B(7), is used as a
pesticide, in plastics, and in organic synthesis.
Trimethyl phosphite, Schedule 3B(8), is used in
insecticides, organic synthesis, veterinary drugs.
Triethyl phosphite, Schedule 3B(9), is used in insecticide
synthesis, as a lubricant additive, in organic synthesis, and
as a plasticizer.
Schedule 3B(10), Dimethyl phosphite, is used in insecticide
production, as a lubricant additive, in organic synthesis, and
as a veterinary drug.
Diethyl phosphite (Schedule 3B(11)) is used in the
production of insecticides, as a gasoline additive, as a paint
solvent, in the synthesis of pharmaceuticals, and in organic
synthesis.
Sulfur monochloride (Schedule 3B(12)) is used extensively
as an intermediate and chlorinating agent in the production of
dyes and insecticides. It is also used for cold vulcanisation
of rubber, in the treatment of vegetable oils and for hardening
soft woods, in pharmaceuticals, organic synthesis, as a
polymerization catalyst, and in the extraction of gold from
ores.
Thionyl chloride, Schedule 3B(14), is used in batteries,
engineering plastics, pesticides, as a catalyst, surfactant,
chlorinating agent, and in organic synthesis of herbicides,
drugs, vitamins, and dyestuffs. Common agricultural products
involving this chemical are: Fenvalerate, Endosulfan,
Methidathion, Flucythrinate, Fluvalinate, Lethane, Diphenamit,
Napromaide, Propamide, Tridiphane, Topan, and Pipertain.
Schedule 3B(17), Triethanolamine, is another chemical with
a widespread use. Because of its surface active properties it
is added to waxes and polishes and is used as a solvent for
herbicides, shellac and various dyes. It is also used for
producing emulsions of various oils, paraffins and waxes, as
well as for breaking up emulsion. It is an important ingredient
of the cutting oil used for metal shaping. Further uses include
in detergents, cosmetics, corrosion inhibitors, as a
plasticizer, rubber accelerator, and in organic synthesis.
Discrete Organic Chemicals (DOC's)
There is no list of DOC's or PSF chemicals to be found in
the CWC. Instead, the CWC generally defines DOC's as:
* * * any chemical belonging to the class of chemical
compounds consisting of all compounds of carbon except
for its oxides, sulfides and metal carbonates,
identifiable by chemical name, by structural formula,
if known, and by Chemical Abstracts Service registry
number if assigned.
This definition excepts plant sites that exclusively produce
explosives or hydrocarbons (including all the normal processes,
chemical and physical, carried out in petroleum refining to
produce chemicals containing only carbon and hydrogen). At the
time of this writing, polymers from monomers, beverages from a
fermentation process, rocket propellants, and high sulfur
crude, however, are not excepted. PSF's are DOC's with a
phosphorous, sulfur, or fluorine atom attached.
As can be seen, this definition captures thousands of
chemical compounds--so many that it is impossible to list them
here. The OPCW has recommended that countries use Chapter 29 of
the Harmonized System for export controls as the basis for
identifying DOC's.
How many businesses will be affected by the CWC?
Our review of information provided by the Arms Control and
Disarmament Agency persuades us that between 3,000 and 8,000
companies will be required to submit annual data declarations
to the Federal Government and receive annual, routine
inspections of their facilities by teams of foreign inspectors.
While it is clear that thousands of U.S. companies, large and
small, will be affected by the CWC, we understand that an exact
estimate is impossible at this time since companies are under
no legal obligation to submit information to the Federal
Government. However, we are concerned that recent estimates
provided to the Committee by the Administration may understate
the number of companies that will be subject to the regulatory
burdens of the CWC.
In 1993, the Congressional Office of Technology Assessment
(OTA) published a study suggesting that the CWC would affect
over 11,200 plants. Citing information provided by the Arms
Control and Disarmament Agency (ACDA) during a December 23,
1992 interview with an ACDA consultant, the OTA reported that:
Only a few pharmaceutical companies that produce
toxic anti-cancer drugs are covered under Schedule 1;
Between 200 and 300 U.S. plants produce, process, or
consume more than the threshold quantity of Schedule 2
chemicals;
Roughly 1,000 produce more than the threshold of
Schedule 3 chemicals; and
At least 10,000 plants are believed to produce more
than the threshold quantity of discrete organic
chemicals.
In October 1994, the Department of Commerce and ACDA published
a refined assessment of the CWC's impact. In outreach mailers
to industry, Commerce and ACDA concluded that roughly 6,300
facilities would be covered under the CWC:
We anticipate that up to 15 U.S. industrial sites
will be affected;
About 100 U.S. industrial sites will be affected;
About 200 U.S. industrial sites will be affected; and
We estimate that up to 6,000 facilities could be
affected.
In 1996, ACDA again reduced its estimate. On May 14, 1996, the
Director of the Arms Control and Disarmament Agency (ACDA),
John Holum, wrote to the Chairman stating that ``we are
operating on the assumption that up to 3,000 companies could
potentially be affected in some manner by the CWC.'' At that
time, ACDA provided the committee with a list of companies that
it deemed likely to be affected by the CWC. That list contained
11 Schedule 1 facilities, 31 Schedule 2 sites, roughly 100
Schedule 3 sites, and approximately 2,000 discrete organic
chemical producers.
However, the information forwarded to the Foreign Relations
Committee seems to be just the tip of the iceberg. On May 17,
1996, Senator Kyl was told by ACDA that 81 industry sites in
Arizona may have ``some involvement with implementation of the
Chemical Weapons Convention.'' Yet ACDA had identified for the
Committee only 9 such facilities in Arizona. In general, the
ACDA list does not appear to include many firms that produce
discrete organic chemicals.
In response to further questions by Chairman Helms on May
24, 1996, ACDA released to the committee a second list of
companies on June 21, 1996. This one contained 8,715 new
industry sites. Although ACDA contended that the subsequent
list consisted solely of companies ``unlikely'' to be affected
by the CWC, this list contained the additional sites which
Senator Kyl was told may have some involvement with the CWC.
In fact, the second list identifies additional facilities
which were included in the database in 1993 because of their
``work with organic chemicals.'' Since 1993, it seems that ACDA
has developed no new information about 5,583 of these
facilities to confirm or deny that they would be affected by
the CWC. Accordingly, we believe it inappropriate to simply
``rule them out.'' Indeed, as Senators have contacted these
additional companies to ask them to review the CWC, it has
become apparent that several of these companies, too, will be
affected.
This would seem most probable when companies on the second
ACDA list engage in the same industrial activities as companies
on the May 14, 1996, list. For example, in the first list, ACDA
identified Goodyear Tire, the Kelly-Moore Paint Company, and
Strohs Brewery as likely to be affected by the CWC. Therefore
it would seem possible that Robbins Tire, Ellis Paint, and the
Coors Brewing Company (all on the second list) might also be
affected.
The following chart provides state-by-state totals for
companies likely (the May 14, 1996 list) and possibly (the June
21, 1996 list) affected:
STATE-BY-STATE IMPACT OF THE CWC
------------------------------------------------------------------------
Likely Possible State total
------------------------------------------------------------------------
Alaska........................... 2 4 6
Alabama.......................... 41 64 105
Arkansas......................... 23 43 66
Arizona.......................... 9 48 57
California....................... 142 672 814
Colorado......................... 11 61 72
Connecticut...................... 42 105 147
Delaware......................... 21 18 39
Florida.......................... 41 292 333
Georgia.......................... 60 165 225
Hawaii........................... 3 13 16
Iowa............................. 25 59 84
Idaho............................ -- 11 11
Illinois......................... 133 300 433
Indiana.......................... 34 111 145
Kansas........................... 22 69 91
Kentucky......................... 44 58 102
Louisiana........................ 91 64 155
Massachusetts.................... 52 142 194
Maryland......................... 23 58 81
Maine............................ 3 40 43
Michigan......................... 55 187 242
Minnesota........................ 21 104 125
Missouri......................... 41 138 179
Mississippi...................... 20 51 71
Montana.......................... 3 7 10
North Carolina................... 79 114 193
North Dakota..................... 4 3 7
Nebraska......................... 8 19 27
New Hampshire.................... 6 10 16
New Jersey....................... 206 391 597
New Mexico....................... 3 14 17
Nevada........................... 1 11 12
New York......................... 104 456 560
Ohio............................. 140 263 403
Oklahoma......................... 19 43 62
Oregon........................... 20 75 95
Pennsylvania..................... 119 210 329
Puerto Rico...................... 15 61 76
Rhode Island..................... 15 49 64
South Carolina................... 66 56 122
South Dakota..................... 2 6 8
Tennessee........................ 48 120 168
Texas............................ 212 460 672
Utah............................. 6 42 48
Virginia......................... 32 79 111
Virgin Islands................... 2 3 5
Vermont.......................... 1 9 10
Washington....................... 31 79 110
Washington, DC................... -- 12 12
Wisconsin........................ 31 92 123
West Virginia.................... 30 14 44
Wyoming.......................... 6 8 14
Total...................... 2,168 5,583 7,751
------------------------------------------------------------------------
On the basis of this analysis, we estimate that the CWC
will affect between 3,000 and 8,000 companies. We note that on
July 11, 1994, ACDA provided a written response to Senator
DeConcini making cost projections for the treaty's impact upon
6,300 inspectable sites.
Are businesses aware that they will be subject to new regulations under
the CWC?
Most of the companies identified by ACDA are unaware that
they will be affected by the CWC. Though ACDA attempted to
notify many of these companies through industry survey
questionnaires and by holding informational seminars, ACDA's
industry database reveals that fewer than 3,800 facilities
responded in any way (either in the affirmative or negative) to
ACDA's questionnaires. Similarly, when ACDA invited 2,400
companies to an informational seminar in 1994, they received
feedback from only 110 businesses. In total, more than two-
thirds of the companies that will be affected by the CWC are
unaware of the treaty's import.
We find this a cause for concern. First, it suggests that
the full range of industry views on the treaty have not been
heard. Second, because the Federal Government in the past has
found notifying small chemical companies of changes in
regulations to be problematic (since most do not even subscribe
to the Federal Register), many of these companies face the
danger of substantial fines if they do not comply with CWC-
mandated regulations--regardless of whether or not they are
aware of them. The majority staff of the Committee has found
that small firms, in particular, and their respective trade
associations (where applicable) have not fully assessed the
implications of the CWC. Dr. Will Carpenter, a Chemical
Manufacturers Association representative, admitted as much in
the book Ratifying the Chemical Weapons Convention:
The leaders of the chemical industry, through the
board of directors of the CMA, have always emphasized
support of the convention. There are, however, another
60 to 80 trade associations whose members will also be
regulated by the National Authority. People in both
government and industry are now discovering how
widespread the chemical industry really is. Automotive,
pharmaceutical, paint and varnish, electronics,
textiles, food processing, soap and detergent
companies--all will be participants. An overwhelming
number of these companies are not aware of the
implications of the Chemical Weapons Convention despite
a continuing effort by ACDA, the CMA, and other
organizations to get the word out.
As has been noted, identification of companies subject to
the CWC's data declaration and inspection regime is hampered by
the fact that businesses are currently under no legal
obligation to report the sorts of activities covered by the
treaty. Additionally, some companies are waiting to learn about
their new obligations until the Committee undertakes
consideration of the CWC's implementing legislation. Finally,
while the chemical and pharmaceutical industries have been
appraised of the CWC's implications by their trade
organizations, the CMA and Pharma are but 2 of 23 trade
associations identified by the Congressional Office of
Technology Assessment in 1993 as representing companies that
will be affected by the CWC.
Indeed, because CMA represents less than 40 percent of the
facilities deemed by ACDA as likely to be affected by the CWC,
it would be erroneous to assume that the remainder are aware of
the potential regulatory burden posed by the Convention. In
fact, only 668 facilities on ACDA's CWC Industry Database
recognize that they might have new regulatory obligations under
the CWC, indicating that even CMA-owned facilities have not
responded to ACDA's industry survey questionnaire.
Significantly, we have found that some CMA-member companies
do not agree whatsoever with the position their trade
association has taken in support of the Chemical Weapons
Convention. The Chief Executive Officer of the Dixie Chemical
Company, Inc.--a CMA member--stated in a letter on September 3,
1996:
We greatly appreciate the opportunity to comment on
the upcoming ratification of the Chemical Weapons
Convention (CWC). While the intent of the CWC is of the
highest merit, the regulations appear to be very
onerous requiring increased reporting and record
keeping, foreign inspections of our facilities, and a
significant challenge to our ability to maintain
Confidential Business Information (CBI).
Below are our responses to the questions asked in your
letter of 8/9/96:
1. We are familiar with the CWC and what our
responsibilities would be under this treaty.
2. We would incur a significant increase in data
reporting under the CWC. We do not produce, possess, or
use any schedule 1, 2, or 3 chemicals. However, we
produce many Discreet Organic Chemicals (DOC). The CWC
would apply to about 75% of our DOC production.
3. I'm certain we could not comply with the CWC under
our current budget. The CWC would probably require an
increase in headcount at our plant.
4. We are not prepared to have a foreign inspection
team in our plant. I doubt that CBI could be
safeguarded during such an inspection.
One of the major problems with the CWC regulations is
that the DOC category is much too broad. As written,
nearly all petrochemicals and organic chemicals would
be pulled into the system. The chemicals listed in
Schedules 1, 2, and 3 are the chemicals that should be
of concern.
It would be of little benefit for the U.S. to
rigorously participate in the CWC, if all the Nations
of the world don't also participate.
Thank you again for allowing us this opportunity to
comment on a treaty ratification that could impact us
so greatly.
On August 30, 1996, the President and CEO of another CMA
company, Sterling Chemicals, stated:
We are very concerned about control and cooperation of
other countries (Mexico, Columbia, North Korea, Iran,
Iraq, Jordan, Libya, Croatia, etc.). Since they
probably will not cooperate, how does this treaty
assure a ``worldwide ban?'
* * * We are familiar with the Chemical Weapons
Convention and we understand our responsibilities (and
liabilities) should this treaty become U.S. law.
* * * We cannot comply within our current annual
budget and personnel constraints. Our best estimates is
that this treaty will cost Sterling a minimum of
$100,000 per year and should an inspection occur at
least another $200,000-$300,000 will possibly be
required.
The Congressional Office of Technology Assessment pointed
out in 1993 that the Chemical Manufacturers Association
``represents only a portion of the U.S. chemical industry.'' In
light of the fact that the Chairman of the Board of Directors
of the CMA wrote to us on August 29, 1996, claiming ``The
chemical industry has long supported the CWC,'' we were
concerned to discover that these companies, who are CMA
members, are opposed to the treaty.
In the spring of 1996, the Committee contacted 14
specialized trade associations and received their membership
lists. These lists were compared with ACDA's CWC Industry
Database. All 14 associations have non-CMA members who will be
subject to the new regulatory burdens and international
inspection regime of the CWC. The following list of
associations is provided to highlight the wide range of
industrial activities that will be regulated under the treaty.
Name of association
American Coke and Coal Chemical Institute.
American Crop Protection Association.
American Wood Preservers Institute.
Chlorine Institute.
Color Pigments Manufacturers Association, Inc.
Compressed Gas Association.
Cosmetic, Toiletry and Fragrance Association.
Drug Chemical & Allied Trades Association.
National Paint & Coatings Association.
Pharmaceutical Research and Manufacturers of America.
Powder Coatings Institute.
Roof Coatings Manufacturers Association.
Society of the Plastics Industry, Inc.
Synthetic Organic Chemical Manufacturers Association.
Types of companies affected
Surprisingly, while one would expect the Chemical Weapons
Convention to affect predominantly the chemical industry,
ACDA's May 14, 1996, list contained over a thousand seemingly
unlikely companies that would be subject to the new regulatory
burdens of this arms control treaty. We were astounded to
discover that the following companies are likely candidates for
multinational regulation under the CWC:
Kelly-Moore Paint Co.; D & L Paint Co.; Glidden Co.;
Sherwin-Williams Co.; Bell Flavors and Fragrances,
Inc.; Safeway Stores, Inc.; Winn-Dixie Stores, Inc.;
Quaker Oats Co.; Nutrasweet Co.; Kraft Foods
Ingredients; Maxwell House Coffee Co.; Gillette Co.;
Eagle-Picher Industries; Pfizer, Inc.; Florida
Distillers Co.; Jim Beam Brands, Co.; Strohs Brewery
Co.; Virgin Islands Rum Industries; ADM Corn Processing
Division; Archer Daniels Midland Co.; Browning Seed
Inc.; Lever Brothers Co.; Kaiser Aluminum; Dial Corp.;
Colgate-Palmolive Co.; Hewitt Soap Co.; Armco Steel
Co.; Xerox Corp.; Crown Wire & Cable; Salem Oil &
Grease Co.; Castrol, Inc.; General Motors Corp.;
Goodyear Tire & Rubber Co.; Missouri Portland Cement
Co.; Bridgestone/Firestone, Inc.; Michelin Tire Corp.;
Citgo Petroleum Corp.; Dye Specialties, Inc.; Simpson
Timber Co.; Raytheon Co.; Lockheed-Martin Corp.; Bell-
Textron, Inc.; Distrib U Toys, Inc.; Huish Detergents,
Inc.; and Trojan Corp.
In reviewing ACDA's information, it became clear to us that
the CWC will affect companies engaged in coke, coal, and steel
production; mining; crop protection; fertilizers; paper
production; wood preservation; chlorine manufacturing; color
pigments, paint, ink and dyestuff production; specialty
coatings; powder and roof coatings; plating and packaging;
compressed gas; cosmetics, toiletries, and fragrances; drug
chemicals manufacturing; pharmaceuticals; plastics; textiles;
custom chemicals; food, wine, and beer processing; and
electronics, among others.
Thousands of companies will be required, every year, to
fill out government forms and host routine international
inspections. They also must be prepared to receive on short-
notice intrusive, challenge inspections by the Organization for
the Prohibition of Chemical Weapons (OPCW), which will be
established in The Hague, Netherlands. We are concerned that:
(1) compliance costs associated with the CWC may prove
burdensome to many industries, and are likely to be far higher
than U.S. government officials currently assume; (2) that on-
site inspections and data declarations potentially may be used
to compromise trade secrets and proprietary information, which
are vital to the U.S. chemical, pharmaceutical, and
biotechnology industries' competitive edge; and (3) that
limitations on availability and production of Schedule 1
chemicals may adversely affect some advanced biotechnology and
pharmaceutical firms.
In fact, Will Carpenter, a representative for the Chemical
Manufacturers Association testified before the Committee on
June 9, 1994, that ``there will be costs associated with the
industry's compliance with the CWC. There will be reporting
requirements, inspection of our facilities, new domestic and
international regulations and the risk of losing proprietary
information.'' During the same hearing, Dr. Carpenter also
stated that ``the CWC will have a negative impact on the U.S.
chemical industry.''
A number of businesses and consumer groups do not support
ratification of the CWC for these reasons. Significantly, the
Vice President for Federal Governmental Relations of the
National Federation of Independent Business (NFIB), Dan Danner,
wrote to both Senator Helms and Senator Lott on September 9,
1996, stating:
On behalf of the more than 600,000 members of the
National Federation of Independent Business (NFIB), I
want to express serious concern regarding the
regulatory requirements and burdens that would be
placed on small businesses who ``produce, process,
consume, export or import'' certain regulated chemicals
with ratification of the Chemical Weapons Convention.
* * * The CWC reverses the trend of reducing the
growing regulatory burden on small business. According
to the Congressional Office of Technology [Assessment]
inspections of businesses required under the CWC will
cost small business $10,000-$20,000. The typical small
business owner takes home only $40,000 per year. The
Department of Commerce has estimated that a business
will spend from 2.5-9 hours on paperwork for each
chemical used depending on its classification.
There is a great deal of disagreement on the number of
businesses which would be affected by the CWC. Numbers
have ranged from 3,000 to 10,000. The regulatory burden
of the CWC will hit small business harder than big
business. A 1995 Small Business Administration study
stated that while small business employs 53 percent of
the workforce, they bear 67 percent of business' total
regulatory expenses. Even if the number of small
businesses in the initial list of affected companies is
limited to a specific list, the fact that additional
businesses might be regulated by the CWC without
approval by the U.S. Congress will make small business
powerless to have any input as it does under the U.S.
regulatory system. For the first time, small businesses
would be subject to a foreign entity inspecting their
business.
The CWC will continue to bury small businesses in
paperwork and regulations. Therefore, NFIB urges your
serious consideration of the effect of this Treaty on
the small businesses in this country.
Other groups which have written the United States Senate to
oppose the CWC include the Small Business Survival Committee,
the Competitive Enterprise Institute, Americans for Tax Reform,
The Eagle Forum, Coalitions for America, The Center for
Security Policy, the National Center for Public Policy
Research, 60 Plus, and Frontiers of Freedom. The chief
economist for the Small Business Survival Committee, Raymond
Keating, published an article in the Washington Times on July
31, 1996, which found that:
Of course, smaller businesses will be hit hardest by
these increased regulatory costs. Interestingly, the
Chemical Manufacturers Association (CMA) supports
ratification of the CWC and told the Senate Foreign
Relations Committee that the new regulations would not
be a burden. But the CMA is a group of generally large
chemical manufacturers, and reportedly more than 60
percent of the facilities likely affected by the CWC
are not CMA members.
Large companies possess far greater resources and have
accrued significant experience in dealing with
regulators of all kinds. In fact, new regulatory
burdens can perversely give large firms a competitive
edge over smaller companies due to these resource and
experience factors. As economist Thomas Hopkins has
shown, the per-employee cost of federal regulation runs
almost 50 percent higher for firms with fewer than 500
employees versus companies with more than 500
employees.
As a case in point, the President of Lomac, Inc. (a company
with 150-200 employees) wrote Senator Abraham on August 21,
1996:
This letter is in response to your recent [staff]
request for information regarding the impact of the
Chemical Weapons Convention (CWC) on businesses such as
ours. It is not possible to estimate the amount of time
that it will take to fill out the various CWC forms,
but I can assure you that the total time will far
exceed the 2-10 hour estimate found in Section 1.A. [of
the Draft Department of Commerce Regulations]. The
instructions alone will require a substantial
commitment of time. After the data is gathered, it must
be checked thoroughly to assure accuracy, because an
honest mistake can (and most assuredly will in some
cases) lead to a $50,000 fine. Even if, however, we
estimate a 20-hour commitment per form, where can we
find the 20 hours? Our staff is already employed full-
time filling out a host of forms and applications for
the Michigan Department of Environmental Quality, the
U.S. EPA, and other government agencies. I have
enclosed, for your information, copies of the reports
that we are required to file annually. As you can see,
this is quite a bit of paperwork--and we are a
relatively small (150-200 employees) company.
* * * I truly believe that this CWC will cost American
jobs without any benefit. The United States can be
trusted to refrain from making chemical weapons, but I
cannot believe that certain other countries will abide
by the treaty. Because of the adverse impact on
Michigan's chemical industry (with little or no off-
setting benefit) I urge you to vote against
ratification of the treaty.
Scores of other companies have also written to object to
ratification of the CWC unless it brings with it a commensurate
national security benefit. ISK Biosciences Corporation, an
agricultural chemical company, wrote the Senate on September 5,
1996, stating:
In general, we believe that banning chemical weapons
is a laudable goal. Since those countries most likely
to instigate the use of chemical weapons are not among
the signatories of the CWC, it would seem that this
convention creates a lot of paper and does very little
to gain the goal of eliminating chemical weapons.
CWC reporting requirements
Many U.S. companies already must provide extensive reports
to the Environmental Protection Agency, the Occupational Safety
and Health Administration, the International Trade Commission,
the Bureau of the Census, and a host of various State and local
agencies. In a February 26, 1992 response to an OTA
questionnaire, the Chemical Manufacturer's Association
indicated that compliance with existing regulations cost the
industry approximately $4.9 billion in 1992. According to the
OTA, one major chemical manufacturer employs 1,700 of its
50,000 personnel just for the purposes of satisfying Federal
and State requirements for environmental and regulatory data.
Diamond Shamrock indicated in an August 26, 1996 letter
opposing the CWC that:
* * * our costs have increased by an estimated $1
million per year over the last couple of years just to
meet new regulatory paperwork demands. We are incurring
these costs, but should assume that our customers are
paying for these in the long run.
* * * awareness is often lacking when we approve
seemingly useful or innocuous regulatory or legislative
initiatives. On a simplistic basis, everything sounds
great in these programs, but when you add up all the
costs, the impact on our economy is enormous. The
negative implications for our domestic growth rate, and
on job and wage growth are often ignored in the
analysis.
CITGO Petroleum Corporation echoed these concerns on August
29, 1996, in a letter to Senator James Inhofe:
We realize that the petroleum industry is not the
specific target of this treaty. Nevertheless it will be
affected because of the extensive list of chemicals
covered by the treaty. While the time and effort to
comply with the CWC proposed rule will be minor in
comparison to the tremendous number of other
regulations affecting our industry (120 federal
environmental regulations for refining alone), it will
unnecessarily add to the company's regulatory burden.
Information required by the CWC verification regime differs
quantitatively and qualitatively from that already collected
for other regulatory purposes. As a result, the United States
will be required to impose new regulations on businesses to
force them to comply with the treaty.
These regulations will differ from existing law in several
ways. First, current environmental regulations do not cover all
of the chemicals relevant to the CWC. Second, of those that are
covered, the production thresholds triggering reporting
requirements are set much higher, and some regulations require
only prospective (rather than retroactive) reporting. Third,
several environmental regulations apply solely to chemical
producers, and not to companies that process or consume
chemicals, such as the pharmaceutical industry. Finally, the
reporting deadlines for the CWC are shorter, and will require
more frequent updates than estimates currently required by the
EPA.
As a consequence of these differences with existing laws,
if the CWC is ratified many companies will be faced with the
challenge of filing detailed annual declarations for the first
time. Additionally, because the CWC requires a company notify
the federal government of any change in declared activities 5
days before it occurs--and because many small firms will find
it difficult, if not impossible, to predict all of their
activities over the coming year--CWC regulations may prove a
frequent burden.
As CITGO indicated, for large firms these new regulations
may add only incrementally to the cost of conducting business
in the United States. Companies such as those represented by
the Chemical Manufacturers Association will simply manage the
new paperwork burden posed by the CWC by augmenting existing
reporting systems. However, the CWC will be proportionately far
more burdensome for small firms, and for companies that are not
currently required to report similar data to federal, state,
and local governments.
These new costs will be particularly difficult to absorb
for small chemical firms which use batch production techniques,
or which ``custom'' synthesize complex intermediates or other
``made-to-order'' products. According to the February 8, 1993,
issue of Chemical Engineering News, these companies generally
have fewer than 100 employees and have annual sales of less
than $40 million each. These companies compete with large
chemical manufacturers who also engage in some batch
processing, and can ill afford the cost of new regulations.
Notably, a 1993 Congressional Office of Technology Assessment
concludes that ``small to medium-sized batch producers may have
more difficulty in complying with CWC reporting requirements
because they have smaller staffs and change their production
processes more frequently.''
The President of one such firm, Moon Chemical Products,
Inc., stated the problem in an August 20, 1996 letter:
The reporting requirements in this treaty are a
burden for any company not involved in weapons * * * We
are manufacturers of industrial, institutional, and
agricultural products. Several years ago we had to hire
an outside consultant to make sure we meet government
regulations for our business, our employees, and our
customers. Please do not add another burden to our
industry.
Small businesses in other economic sectors are faced with
the same problem. The President of South Hampton Refining
Company stated in a letter on August 19, 1996, that:
No, we could not comply with this treaty within our
current annual budget and personnel. The reason we are
in business as a small refiner is that we change the
operation quickly and often to meet the market. The
reporting alone would require additional personnel,
much less the cost of potential inspection,
interpreting the regulations, etc. We currently have
10% of our work force assigned to nothing but
regulatory functions, mostly environmental. At some
point these non-profit producing efforts will outweigh
the value of keeping the business operating.
* * * There are months where the cost of compliance
with this treaty would completely eliminate the profit
for the month. You can explain to our employees how
this is more important to the nation than them getting
a paycheck, or having health coverage, or having a
retirement plan, or having a profit sharing check.
We found this same sentiment reflected time and again in
the responses of small companies to questions about the CWC.
Another refining company--Valero Refining Company--noted on
August 20, 1996, that ``Valero is an independent refinery with
limited staff resources which are already overwhelmed with
regulatory compliance record keeping and reporting.''
A small plating company in Minnesota wrote to Senator Grams
stating that the federal government has ``small business buried
with regulations with all this paperwork that has to be
submitted to different agencies * * * This treaty will not be
worth the paper it is written on.''
The paperwork
The Bureau of Export Administration of the Department of
Commerce has prepared a handbook and declaration forms for
companies subject to the CWC's regulations. The following
charts summarize the number of forms currently contemplated:
Schedule 1: Declarations
Certification Form
Form 1-1, Schedule 1 Facility or Trading Company
Identification
Form 1-2, Annual Report of Schedule 1 Chemical
Activities at the Facility During the Previous Year
Form 1-2A, Annual Report of Schedule 1, 2, and 3
Precursor Chemical(s) Used to Produce a Schedule 1
Chemical
Form 1-2B, Annual Report of Purposes for Which a
Schedule 1 Chemical Was Consumed
Form 1-2C, Annual Report on the Receipt and/or
Shipment of the Schedule 1 Chemical From or To Other
Schedule 1 Facilities in the United States
Form 1-3, Annual Report of the Schedule 1 Chemicals
Imported or Exported to Other States Parties
Form 1-4, Declaration on Schedule 1 Anticipated
Activities
Form A, Attachments for Declared Plant Sites
Form B, Optional Comments
Schedule 2: Declarations
Certification Form
Form 2-1, Schedule 2 Plant Site or Trading Company
Identification
Form 2-2, Declaration of Schedule 2 Plants at Plant
Site
Form 2-3, Declaration of Schedule 2 Chemicals at
Plant Site
Form 2-3A, Declaration of Schedule 2 Chemicals Sold
or Transferred Off the Plant Site in the United States
Form 2-3B, Report of Detailed Data on Exports and
Imports of Schedule 2 Chemicals
Form 2-3C, Declaration of Anticipated Activities or
Amended Plans for Schedule 2 Chemicals
Form 2-4, Initial Declaration of Schedule 2 Chemicals
Produced Since 1 January 1946 for Chemical Weapons
Purposes
Form A, Attachments for Declared Plant Sites
Form B, Optional Comments
Schedule 3: Declarations
Certification Form
Form 3-1, Schedule 3 Plant Site or Trading Company
Identification
Form 3-2, Declaration of Schedule 3 Plants at Plant
Site
Form 3-3, Declaration of Schedule 3 Chemicals at the
Plant Site
Form 3-4, Initial Declaration of Schedule 3 Chemicals
Produced Since 1 January 1946 for Chemical Weapons
Purposes
Form A, Attachments for Declared Plant Sites
Form B, Optional Comments
Discrete organic chemicals: Declarations
Certification Form
Form DOC, Unscheduled Discrete Organic Chemical (DOC)
Plant Site Identification (2 pages)
Form A, Attachments for Declared Plant Sites
Form B, Optional Comments
Needless to say, we are very concerned that the
Administration's approach to declarations is complicated and
far too burdensome for industry.
Who must submit paperwork?
Declarations to the federal government will be mandatory
for companies that produce, utilize in any way, or import or
export chemicals listed in Schedules 1, 2 and 3 in quantities
above the thresholds specified in the CWC. Furthermore,
producers of discrete organic chemicals in quantities more than
200 metric tons will also be required to declare their
facilities. Companies must also declare facilities if their
products contain phosphorus, sulphur or fluorine (PSF), and are
produced in quantities greater than 30 metric tons. Only
facilities that produce pure hydrocarbons or explosives are
excluded from DOC and PSF declarations.
The Verification Annex of the CWC empowers the OPCW's
Technical Secretariat to determine a company's compliance by
examination of the data supplied and routine inspections of the
companies facilities.
Schedule 1 requirements
The Schedule 1 regime is the most rigorous of the CWC's
sets of verification provisions. If the United States ratifies
the treaty, it will forgo the ability to produce or otherwise
acquire in one year--or possess at any given time--more than 1
ton of all Schedule 1 chemicals combined, notwithstanding the
fact that Schedule 1 contains chemicals essential to research,
medical, pharmaceutical, and chemical defense programs.
Moreover, Schedule 1 also includes biological toxins, such as
ricin. Not only does the inclusion of toxins under the Schedule
1 regime directly affect pharmaceutical and biotechnology
industries, but we are concerned that this impact will become
more pronounced if the CWC is expanded to cover various
biological pathogens failing efforts to create a verification
regime for the BWC.
Production of Schedule 1 chemicals is limited to minute
quantities. Each country may possess 1 small-scale facility (no
more than an aggregate 500-liter capacity) which may not be
configured for continuous operation, and which may not have any
reaction vessels with a volume greater than 100 liters. All
other production of Schedule 1 chemicals is limited to no more
than 10 kg per year, and is still subject to the 1 ton limit on
production, as well as to the rigorous declaration and
inspection provisions of the CWC.
For each and every Schedule 1 chemical ``produced,
acquired, consumed, or stored'' a company must provide a
detailed annual data declaration identifying the chemical name,
structural formula, Chemical Abstracts Service registry number
(if assigned), the methods employed, quantity produced, the
name and quantity of precursors listed in Schedules 1, 2, and 3
used for production of the chemical, the quantity consumed and
purposes of consumption, shipping data, storage data, and
technical description of the facility, including detailed
inventories of equipment and diagrams.
Schedule 2 requirements
The list of Schedule 2 chemicals appears in the CWC in the
Annex on Chemicals. The required declarations are described in
Part VII of the Verification Annex. Schedule 2 requirements
include aggregate national data on quantities produced,
processed, consumed, imported, and exported of each Schedule 2
chemical including full specification of imports and exports
for each chemical involved. Declarations are required for all
plant sites involved in production, processing or consumption
above the following thresholds:
1 kg of a ``*'' chemical in 2A;
100 kg of other chemicals in 2A; and
1 ton of a chemical in 2B.
A considerable amount of detailed information is also
required on the actual plant site where a Schedule 2 chemical
is produced above the threshold. The initial declaration for
each plant site has to cover the three previous calendar years.
In sum, the following declarations are required for
Schedule 2:
(1) initial Declarations on aggregate National Data
and plant sites 30 days after entry into force;
(2) annual Declarations on past or completed
activities 90 days after year end for aggregate
national data and plant sites;
(3) annual Declarations for anticipated activities 60
days before the annual production cycle begins at plant
sites; and
(4) additional production over that declared under
(3) above must be declared 5 days before the production
cycle begins.
All declarations for Schedule 2 chemicals must include: (1)
a primary declaration identification, (2) one declaration per
chemical, and (3) specifications on the import and export of
the Schedule 2 chemical by country. The OPCW in turn has
interpreted this to mean that national authorities will need to
require from producers, consumers, and processors of Schedule 2
chemicals data that will contain significant confidential
business information. We therefore expect the basic set of data
will include the item number on Schedule 2, chemical name, CAS
registry number, common/trade name and structural formula,
quantity produced (including information on percentage
concentration regarding raw material and product), quantity
processed (including information on percentage concentration
regarding raw material and product) and quantity consumed,
imported, exported, retained stored, sold or transferred,
information on import/export (supplier and recipient
countries), information on quantities sold or transferred
(including information on destination and final product for
which the chemical has been used), and information on instances
where the chemical produced is used for other purposes than
processing, consumption and shipment to another destination.
Declarations on Schedule 2 plant sites must include a
primary declaration identification, Schedule 2 plant site
information, the number of Schedule 2 plants at the plant site,
the production capacity per chemical, information on all
Schedule 2 chemicals at each plant site, information on
Schedule 2 chemicals sold or transferred off the plant site,
anticipated time periods for the production, processing or
consumption of Schedule 2 chemicals, a one-time declaration of
Schedule 2 chemicals produced at the plant sites since January
1, 1946 for chemical weapons purposes, production periods for
Schedule 2 chemicals produced for chemical weapons purposes
since January 1, 1946, and locations to which each Schedule 2
chemical produced for chemical weapons purposes was delivered.
It is thus expected that the basic set of data Schedule 2
plant sites will include: (1) logistics information such as the
name and address of the facility (including building number or
address, structure and postal code) and name of both the owner
and operator of the facility; and (2) activity information such
as the main activities of the facility, which scheduled
chemicals are produced, production capacity, and information on
the type of plant (dedicated or multipurpose).
There are two major unresolved issues with respect to
Schedule 2. The term aggregate national data and the reporting
requirements for mixtures containing a ``low concentration'' of
a Schedule 2 chemical are not defined. In the former instance,
some countries assumed that the aggregate would cover all
production, including that from sites below the declaration
threshold. Others insist on the aggregation of data from
declared sites only, adding all declared data on production,
processing and consumption above the threshold together with
the actual import and export quantities. The matter has been
further complicated by the Technical Secretariat's proposed
``Rounding rules'' whereby, for example, quantities less than
500 kg would be rounded down to 0 tons (e.g., production,
processing or consumption of 1.5 tons would be declared as 1.0
ton, while 1.6 tons would be rounded up to 2 tons).
Secondly, the CWC states that declarations ``are not
generally required for mixtures containing a low concentration
of a Schedule 2 chemical'' and goes on to state that
declarations are only required in accordance with
``guidelines'' that relate to the ease of recovery of the
Schedule 2 chemical and its total weight. The guidelines have
not yet been developed by the Preparatory Commission or
approved by the conference of States Parties, pursuant to
Article VIII. Nor has the Expert Group come to agreement on
total weight and a percentage below which a declaration would
not be required (provided that the Schedule 2 chemical was not
isolated), or on an elaboration of criteria related to ease of
recovery together with quantitative thresholds.
As it stands, the CWC requires declarations on any chemical
produced as a byproduct of an industrial process whether it has
some commercial value or not. In the case of Schedule 2
chemicals, such byproducts will be produced by processing and
consumption as well. Furthermore, finished products, either
imported or exported, containing even a small amount of a
scheduled chemical formed part of a formulated material may
need to be declared.
Schedule 3 requirements
The list of Schedule 3 chemicals also appears in the CWC in
the Annex on Chemicals (as described in Article VI). Schedule 3
requirements include aggregate national data and plant sites,
but only specifies production, imports and exports, with no
requirements related to processing or consumption. Declarations
are needed for plant sites producing more than 30 tons of a
Schedule 3 chemical. The production is to be expressed in
ranges:
30 to 200 tons;
200 to 1,000 tons;
1,000 to 10,000 tons;
10,000 to 100,000 tons; and
above 100,000 tons.
The following declarations are required for Schedule 3
chemicals:
(1) initial declarations on aggregate national data
and on plant sites 30 days after entry into force;
(2) annual declarations on past or completed
activities 90 days after year end both for aggregate
national data and plant sites;
(3) annual declarations for anticipated activities at
plant sites 60 days before the year begins; and
(4) any proposed change after the anticipatory
declarations to be made 5 days before additional
production begins.
All Schedule 3 chemical data declarations must include a
primary declaration identification, one declaration per
chemical, and specifications on the import and export of the
Schedule 3 chemical by country. For these declarations the
following data will be essential: item number on Schedule 3,
chemical name, CAS registry number, common/trade name and
structural formula, quantity produced (including information on
percentage concentration regarding raw material and product),
information on import/export, information on purpose of
production, and information on the production range for the
given chemical (i.e., less than 30 tons, 30-200 tons, 200-1,000
tons, 1,000-10,000 tons, 10,000-100,000 tons and above 100,000
tons).
Information on declared Schedule 3 plant sites must include
the primary declaration identification, Schedule 3 plant site
information, information on all Schedule 3 plants at the plant
site, data on all Schedule 3 chemicals at the plant site, a
one-time declaration of any Schedule 3 chemicals produced at
the plant sites since January 1, 1946 for chemical weapons
purposes, production periods for Schedule 3 chemicals produced
for chemical weapons purposes since January 1, 1946, and a list
of locations to which each Schedule 3 chemical produced for
chemical weapons purposes was delivered. The basic set of data
would thus consist of the name and address of the facility
(including building number or address, structure and postal
code) and name of both the owner and operator of the facility,
main activities of the facility, which scheduled chemicals are
produced there and their production capacity, and information
on the type of plant (dedicated or multipurpose).
The same two problems exist for Schedule 3 chemicals as for
Schedule 2 chemicals: questions over ``aggregate national
data'' and ``low concentrations'' as terms. Again
``guidelines'' have yet to be developed as to when declarations
are required for Schedule 3 chemicals which are part of
mixtures and an understanding of what aggregate national data
means in the CWC.
Other chemical production facilities
Since there are many chemicals that are not on the
schedules but which could play a role in CW development, the
CWC casts an even broader net to capture facilities capable of
being used or converted into facilities that could be used for
the production of scheduled chemicals or other chemicals that
could be used as chemical weapons or precursors. The CWC
requires declarations on ``other'' chemical production
facilities engaged in the production of ``unscheduled discrete
organic chemicals'' (DOC's), a subclass of which is
``unscheduled discrete organic chemicals containing the
elements Phosphorus, Sulfur or Fluorine'' (PSF). Declarations
are required for plants that synthesize: 200 tons or more of
DOC's; and 30 tons or more of PSF chemicals.
Declarations of plant sites are to occur 30 days after
entry into force, with an annual update of this list 90 days
after the calendar year end. The list of plant sites must also
include an aggregate amount of the production of each DOC given
in the ranges: under 1,000 tons; 1,000 to 10,000 tons; and
above 10,000 tons.
The production of PSF chemicals in PSF plants is to be
expressed in the aggregate ranges: under 200 tons; 200 to 1,000
tons; 1,000 to 10,000 tons; and above 10,000 tons.
For DOC's, including PSF chemicals, the following
information would likely be needed in an industrial
declaration: data on chemical group, chemical name, CAS
registry number and common/trade name, and information on the
production range for the plant site. For a facility producing
DOC's, including PSF's, logistics information such as the name
and address of the facility where the chemical is handled or
stored (including building and structure specification) and
name of both the owner and operator of the facility and
activity information (e.g., main activities of the facility and
identification of each unit or plant at each plant site that
has produced a DOC, including PSF plants) would be necessary.
We find inconsistency in the CWC's treatment of DOC's and
PSF chemicals in comparison with Scheduled chemicals. Elsewhere
the CWC defines production as ``its formation through chemical
reaction.'' Why is the production of DOC's ``by synthesis''
also covered?
Second, the DOC category is far too expansive. It should be
limited, and synthesis as a method of production should be
excluded. As it stands, this provision of the CWC increases
significantly declaration and inspections costs, and will
require a far broader number of U.S. companies to assume new
regulatory burdens under the CWC than otherwise would be the
case.
CWC inspection requirements
Any company that provides declarations to the federal
government should prepare for inspections. Once a State Party
provides its declarations to the OPCW, these will be verified
by on-site inspections (routine and challenge inspections) by
the Technical Secretariat of the OPCW. Both declarations and
inspections are ``triggered'' by activity beyond certain
thresholds:
------------------------------------------------------------------------
Declaration Inspection
------------------------------------------------------------------------
Schedule 2A *................ 1 kilogram............... 10 kilograms.
Schedule 2A.................. 100 kilograms............ 1 ton.
Schedule 2B.................. 1 ton.................... 10 tons.
Schedule 3................... 30 tons.................. 200 tons.
Unscheduled DOC's............ 200 tons................. 200 tons.
PSF's........................ 30 tons.................. 200 tons.
------------------------------------------------------------------------
Facilities that produce Schedule 1 chemicals can be
inspected at anytime, and there is no limit on the actual
number of inspections per annum. Individual Schedule 2 or 3
plants can receive a maximum of two inspections per year.
Plants that produce ``other discrete organic chemicals'' will
not be inspected during the first three years, but will be
liable for inspection thereafter. The total annual number of
inspections for all Schedule 3 plants and these other
facilities will be either 20, or 3 + 5 percent of the total
number of the plant sites declared, whichever figure is
smaller.
The CWC limits the time that inspectors from the OPCW may
spend at an individual site unless the National Authority
agrees to an extension. The time limit is 96 hours for Schedule
2 sites, and 24 hours for Schedule 3 facilities and other
chemical production facilities. Due notice must be given for a
routine inspection.
Schedule 2 facilities
During the first three years after entry into force, all
commercial facilities that produce, process or consume Schedule
2 chemicals above the thresholds will undergo an initial
inspection, during which negotiations will commence work on a
Facility Agreement (FA). This will be negotiated between
representatives of the OPCW and the federal government, with
``assistance'' from the plant management. If the FA is not
agreed upon within 90 days, inspections will involve the
``managed access'' approach. The agreement must specify those
parts of the site apart from the plant which are of concern to
the Inspectorate and thus, may form part of the routine
inspection pathway.
In general, access by the OPCW inspection team to other
parts of the plant site will be granted in accordance with the
negotiated Facility Agreement. The National Authority will have
a minimum of 48-hours notice of any given inspections and the
inspection cannot last more than 96 hours.
Schedule 3 facilities
Schedule 3 facilities are also subject to routine
inspections after entry into force. There is no requirement for
a formal initial inspection nor for a Facility Agreement,
although one can be requested by a given firm. Inspections will
focus on the declared Schedule 3 plant(s) but may request
access to other parts of the plant site on the basis of
negotiation. Access to records, sampling and on-site analysis
will also be the subject of negotiation. The State Party will
receive a minimum notice of five days before the inspection
takes place and the inspection cannot last more than 24 hours
without further agreement of the national authority.
Other chemical production facilities
The inspection regime for ``other chemical production
facilities'' will not begin until four years after entry into
force. Facility agreements are optional. The State Party will
receive a minimum of 120 hours advance notice of an inspection,
and the duration of the inspection will not exceed 24 hours
unless the federal government agrees to extend it.
Challenge inspections
Article IX of the CWC provides for short notice inspections
at any site, declared or undeclared, and at government or
privately owned facilities. We are concerned with the
possibility that the on-site inspection provisions of the CWC
will compromise the trade secrets of U.S. businesses.
Businesses are concerned, too.
The U.S. chemical pharmaceutical, and biotechnology
industries have long been heavily targeted for industrial
espionage. Since the end of the cold war, the number of
reported incidents has continued to increase annually, along
with increases in the number of incidents involving foreign
firms or governments. A nationwide survey regarding industrial
espionage conducted in 1992 by the American Society for
Industrial Security documents a 280 percent increase (over a
1985 survey) in the number of incidents involving the
compromise of confidential business information, and a 360
percent increase in foreign involvement in these incidents.
Eleven chemical companies responded anonymously to the survey,
eight of whom reported a total of 21 known attempts to steal
proprietary information--the most frequent targets being
customer lists, pricing data, and manufacturing process
information. Six of those incidents cost the companies a total
of $86.25 million.
Dr. Will Carpenter, a former-Vice President for Technology
at the Monsanto Agriculture Company and a Chemical
Manufacturers Association representative, supplied the
Committee with a copy of his remarks before the American
Association for the Advancement of Science on January 16, 1989.
In that statement, he noted:
Those of use who manufacture chemicals that are only
a step or two away from chemical weapons--and that
means a large number of us in the CMA--have already
accepted the reality that a good treaty means
significant losses of information that we consider
confidential.
Proprietary information is often the basis for a chemical
company's competitive edge. As a practical matter, a wide
variety of things may be considered proprietary or sensitive by
a given company. Some examples of common types of confidential
business information were compiled by the Office of Technology
Assessment in 1993:
The formula of a new drug or specialty chemical
A synthetic route that requires the fewest steps or
the cheapest raw materials
The form, source, composition, and purity of raw
materials or solvents
A new catalyst that improves the selectivity,
efficiency, or yield of a reaction
The precise order and timing with which chemicals are
fed into a reactor
Subtle changes in pressure or temperature at key
steps in a process
Isolation methods that give the highest yields
consistent with good recycling of solvents and reagents
Expansion and marketing plans
Raw materials and suppliers
Manufacturing costs
Prices and sales figures
Names of technical personnel working on a particular
project
Customer lists
The theft of any one of these items could result in a loss
of revenue and investment that could damage a large company,
and drive a small one out of business. Underscoring the
importance attached to proprietary information is the fact that
companies seldom patent their unique ``tricks of the trade'' in
order to prevent Freedom of Information Act (FOIA) requests (to
which patents are subject) from compromising business secrets.
Because some trade secrets are not all that complex, the OTA
found that ``even visual inspection alone might reveal a unique
process configuration that could be of great value to a
competitor.'' Yet the CWC allows for far more than mere visual
inspection during a challenge inspection.
CWC inspections will be conducted by international teams of
inspectors including nationals from U.S. political and/or
economic adversaries. During even a routine inspection a
skilled chemical engineer equipped with knowledge of the target
facility and list of specific questions to be answered could
learn a great deal about the activities of a given business.
According to the OTA, potential sources of proprietary
information that might be compromised during an on-site
inspection include:
manifests and container labels that disclose the
nature/purity of the feedstock and the identity of the
supplier
instrument panels revealing precise temperature and
pressure settings for a production process
chemical analysis of residues taken from a valve or
seal on the production line
visual inspection of piping configurations and
instrumentation diagrams could allow an inspector to
deduce flow and process parameters
audits of plant records
Lieutenant General (Ret.) James A. Williams, former
Director of the Defense Intelligence Agency, wrote Senator Lott
on September 9, 1996, urging that ratification of the CWC be
delayed until the Senate had engaged in informed debate on the
dangers of economic espionage. According to General Williams,
who is currently a consultant to several large firms on
competitive and counter-economic intelligence issues:
* * * the opportunity for unfettered access to
virtually every industrial facility in this country,
not merely the pharmaceutical and chemical plants,
would make most foreign intelligence organizations very
happy, even gleeful. It is likely to cause the
counterintelligence sections of the FBI and the Defense
Investigative Service major problems for the
foreseeable future. The inspection procedures which
apply to ALL industries constitute unprecedented access
to our manufacturing base, not just to those thought
likely to be engaged in proscribed activities! My
experience in protecting patents and intellectual
property over the past ten years leads me to conclude
that there is the potential for the loss of untold
billions of dollars in trade secrets which can be used
to gain competitive advantage, to shorten R&D cycles,
and to steal U.S. market share. To allow invasion of
private property without probable cause or a search
warrant could undermine every industrial security
standard established under government regulations or by
private firms seeking to protect industrial processes
or other proprietary information.
Many U.S. companies are extremely concerned with the CWC's
inspection regime. The Detrex Corporation, for example, wrote
to Senator Abraham on August 30, 1996, stating that:
Although reverse engineering of a product (the
process of determining the products' composition or
molecular structure) may be possible, many companies
enjoy a competitive advantage in a market due to the
manufacturing process used. Process ``trade secrets''
may include items as simple as: the type of equipment
used, manufacturing parameters, or even who supplies a
particular raw material. Allowing inspectors full
access to a company's manufacturing site and records
could have a large impact on a company's ability to
compete in domestic and international trade.
We are concerned, along with U.S. businesses, that even
routine inspections under the CWC could erode a businesses
competitive advantage. What is worse, the CWC's challenge
inspection provisions allow inspectors wide latitude in
interviewing employees and access to company documents, not to
mention the right to take samples and ship them off-site to
international laboratories for analysis. It is expected that
laboratories conducting analysis of samples will be
geographically dispersed among the ratifiers of the CWC. A
number of countries with questionable chemical weapons
nonproliferation credentials, such as China and Iran, have
already indicated an interest in fielding laboratories.
In preparation for the CWC, the U.S. conducted seven
National Trial Inspections at government and industrial
facilities. Those trial inspections support concerns that even
routine access by the OPCW to chemical facilities could result
in the loss of trade and/or national security secrets--to say
nothing of the access allowed under more intrusive challenge
inspection provisions. During one National Trial Inspection,
soil and water samples taken from the exterior of buildings at
a chemical plant three weeks after a production run revealed
the product of the operation and process details. Moreover, the
CWC explicitly affords an inspection team the right to take
samples on-site and, pursuant to Part II paragraph (E)(55) of
the Verification Annex, the right to transfer, ``if it deems
necessary,'' samples for analysis off-site at international
laboratories designated by the OPCW.
The CWC's sampling provisions pose a danger not only to
trade secrets, but to government secrets as well. Dr. Kathleen
Bailey, Senior Fellow at Lawrence Livermore National
Laboratory, testified before the Committee on March 21, 1996,
that:
Experts in my laboratory recently conducted
experiments to determine whether or not there would be
a remainder inside of the equipment that is used for
sample analysis on-site.
They found out that, indeed, there is residue
remaining. And if the equipment were taken off-site,
off of the Lawrence Livermore Laboratory site, or off
of the site of a biotechnology firm, for example, and
further analysis were done on those residues, you would
be able to get classified and/or proprietary
information.
The U.S. Government published in the Conference on
Disarmament an unclassified report of the third National Trial
Inspection of the Monsanto Agricultural Company's Luling,
Louisiana plant in August, 1991 by a mock inspection team
comprised of U.S. experts. One of the most troubling findings
of the inspection report was in the area of the protection of
confidential business information (CBI). The report determined:
The Monsanto representative who was on the inspection
team to determine the extent of CBI he could obtain,
determined there would be a loss of such information.
He stated he was able to obtain enough information
about the glyphosate intermediate process merely by
equipment inspection to save a potential competitor
considerable process development, time and dollars. He
said a knowledgeable inspector could compromise
Monsanto's proprietary business interests with no
access to their records beyond the quantity of
phosphorous trichloride consumed.
The conclusions of this report would seem to be
particularly troubling for many chemical, pharmaceutical, and
biotechnology companies. The Office of Technology Assessment
(OTA) estimated in August, 1993, that the U.S. chemical
industry loses approximately $3-$6 billion per year in
counterfeited chemicals and chemical products. The development
of a new pesticide takes an average of 10 years and costs $25
million. U.S. pharmaceutical firms take an average of 12 years
and spend roughly $350 million in research and development of
each new drug.
Information gleaned from inspections and data declarations
literally could be worth millions of dollars to foreign
competitors. However, the greatest threat is not to large,
diversified chemical manufacturers, but to small companies
concentrating on a single market or technological niche. A
small company whose profitability (and economic survival)
derives from a cost or quality advantage in one area will be
particularly vulnerable to industrial espionage. Theft of that
one trade secret, which may not be all that complex, could
drive the company out of business.
As a consequence, the CWC's threat to trade secrets
concerns far more than the chemical, biotech, and
pharmaceutical industries. In an August 7, 1996 letter to
Senator Jon Kyl, a manufacturer of animal health-care products,
Farnam Industries, stated:
First, the short-notice challenge inspections that
can be initiated by foreign states would be a burden
physically and financially. We have confidential
information concerning formulations and manufacturing
procedures that we need to protect.
Similarly, Crafco, Inc., wrote to Senator Kyl on September
6, 1996:
Our company does not maintain, use or propose to use
any Schedule 1, 2, or 3 chemicals. However, we would
like to express our reservations concerning unannounced
inspections. The potential for abuse, specifically the
theft of trade secrets both formulations and process
oriented is significant. Unannounced inspections are
also costly in terms of production disruption. A second
concern would be that the apparent goals of this treaty
are enforceable in the United States under already
existing statutes. Industry sponsored terrorism in the
form of chemical weapons manufacture is controllable
without external intervention. Finally, without the
assent of the states sponsoring terrorism this treaty
really amounts to the good guys policing the good guys
and picking up whatever they can in the process.
CITGO Petroleum wrote on August 29, 1996 that ``CITGO
believes that the requisite inspections associated with the
Treaty will, no doubt, jeopardize confidential business
information as well as disrupt normal business operations.''
Another small laboratory in Minnesota commented that ``We
are also concerned about protecting trade secrets from
international inspection teams. * * * We have seen information
leaked through the FOI [Freedom of Information] process and do
not believe that information obtained by international
inspection teams would be as secure.''
On August 15, 1996, the Gemini Company stated that it would
not be prepared to receive a foreign inspection team:
* * * hosting such an inspetion would be a serious
hindrance to our business. It would be very difficult
to safeguard confidential business information during
such an inspection.
We have serious reservations about the ability of
more legislation and further regulation of U.S.
industry to solve the chemical weapons problem.
Further, since the countries of Libya, Iraq, Syria and
North Korea refuse to sign this treaty, how will
further reporting requirements, and inspection of
businesses such as ours prohibit the development of
chemical weapons?
On July 19, 1996, The Sundt Corporation noted that:
Based upon the depth of inspection, e.g., interviews
with corporate personnel, employees, vendors,
subcontractors; review of drawings, purchase orders,
subcontracts; inspection and review of internal and
external correspondence; we feel that it could be
difficult to safeguard confidential business
information during this inspection. This has to do not
only with our internal corporate information but we
would be concerned about information that we have
signed a confidentiality agreement with our partners
and/or customers.
The Dial Corporation wrote to Senator Kyl on July 23, 1996
to inform him that: ``We are not prepared to receive a foreign
inspection team to our facilities, and we would be greatly
concerned that such a visit might compromise our confidential
business information.''
Prepared or not, if the United States Senate ratifies the
CWC, the burden of safeguarding proprietary information will
fall squarely upon the shoulders of U.S. businesses. This, too,
will entail significant cost to industry. Following the first
U.S. National Trial Inspection at the Akzo Chemicals Plant in
Gallipolis Ferry, West Virginia, Akzo reported a cost of
$10,000 for its time spent in preparing for the trial
inspection.
In practice, inspections will depend upon the size of the
facility, the portion of the commercial site relevant to
activities that might be of concern, and the extent to which
the facility is engaged in highly proprietary or classified
defense activities, such as the manufacture of materials for
stealth aircraft. According to the Department of Defense, the
cost to commercial and government facilities which meet these
criteria for preparing for a challenge inspection is expected
to range from $200,000 to $500,000. According to the OTA,
inspection costs will be higher if a company must shut down
production for safety reasons or to protect trade secrets, or
if the company must reconfigure or relocate production or
consumption of chemicals to protect trade secrets.
The disruption of production runs poses a serious,
unestimable opportunity cost. Many businesses have expressed
concern about their loss of revenue if they must suspend
operations during an inspection. As McWhorter Technologies put
it on September 5, 1996:
* * * many of our operations run on a seven day,
twenty-four hour schedule. A foreign inspection team
could be quite disruptive particularly on the short
notice indicated in this proposed treaty. In addition
to the negative impact on operation such a visit could
incur, reimbursement of costs for the inspection could
be quite significant.
The total cost to U.S. economy from ratification of the
CWC, as a consequence of indirect inspection costs, production
interruptions, accounting costs, and the potential theft of
trade secrets, could be enormous.
Impact upon advanced biotechnology and pharmaceutical firms
The CWC may seriously affect some ``cutting-edge''
pharmaceutical and biotechnology companies by denying access to
chemicals needed to produce their medical treatments. A small
but significant cross-section of the biotechnology and
pharmaceutical industries may find their ability to obtain to
basic raw ingredients used to manufacture their products
constrained. For example, one biotechnology firm in
Massachusetts uses ricin--a Schedule 1 chemical--in its anti-
cancer compounds. While the CWC permits the use of Schedule 1
chemicals under Part VI, paragraph (A)(2) of the Verification
Annex, that use is subject to two subsequent provisions in
paragraph (A) which: (1) limit the aggregate quantity of all
Schedule 1 chemicals at any one time in the United States to 1
metric ton; and (2) limit production or other acquisition of
Schedule 1 chemicals to one metric ton annually. Furthermore,
the CWC limits manufacture of Schedule 1 chemicals in excess of
10 kg to one single, small scale facility in the United States.
Each other facility is limited to production of no more than 10
kg per year of Schedule 1 chemicals.
Given the fact that this biotechnology firm alone expects
to need between 50 and 80 kg per year, the possibility exists
that the firm's medicinal needs will be placed in direct
competition with the other demands placed upon the annual
aggregate ton of Schedule 1 chemicals. Indeed, the very
existence of the one-ton exception came at the insistence of
the United States, which desired to retain some Schedule 1
chemicals for use in law enforcement activities. Moreover, the
excepted ton likely also will be called upon to satisfy
chemical defensive research and testing. Clearly the CWC
establishes a trade-off between the ability of biotechnology
and pharmaceutical industries to manufacture anti-cancer agents
and other life-saving drugs and the ability of the U.S. to
develop life-saving chemical warfare defenses. Even under the
best circumstances, biotechnology firms using Schedule 1
chemicals will be forced to pursue multiple sources and to
conduct duplicative testing and auditing of their multiple
chemical supplies. This will entail costs that are significant
for small firms whose competitive edge derives from a single
product.
Significance of the CWC for trade in chemicals
In addition to concerns over the impact upon industry of
CWC ratification, during hearings from private sector witnesses
in March 1996, the committee also considered the significance
of nonratification of the CWC. In testimony before the
committee on March 21, 1996, the President and Chief Executive
Officer of the Chemical Manufacturers Association, Frederick
Webber stated that:
We are a fast, reliable, high-quality supplier to
customers in every corner of the globe. But we could
lose that distinction; we could lose it if the U.S.
does not ratify the Chemical Weapons Convention.
The Convention sharply restricts trade in chemicals
with countries who are not parties to the treaty. If
the Senate does not ratify, our customers will cut us
off. They will drop us, and find other suppliers.
* * * Our largest trading partners, who will be party
to the Convention, what they are going to do is, they
are going to apply trade restrictions to chemicals that
originate here, or that are being shipped there.
In direct contrast, Dr. Kathleen Bailey stated:
I would like to correct what I think are two mistakes
in things that have been said before.
The first one has to do with the idea that the United
States, if it does not ratify the treaty, will create a
situation which sharply restricts trade in chemicals.
There are three schedules of chemicals listed in the
Convention. Schedule one chemicals are essentially
chemical weapons. They are very nasty chemicals; they
are not traded by the United States anyway.
Schedule two chemicals are terrible, but they were
less terrible than schedule one, in terms of chemical
weapons. But these chemicals are not traded very
widely. This is the category of chemicals of which
there is a trade restriction.
Now, schedule three chemicals, the ones in which we
have a lot of trade, is not restricted by the treaty.
So statements made today that not ratifying the treaty
would result in a restriction on trade is simply not
true, because the trade we do in chemical trade is
schedule three chemicals, and the treaty does not
restrict that.
The assumption that the CWC will enter-into-force without the
participation of the United States, which is expected by most
countries to pay one-quarter of the OPCW's total costs, is
highly questionable. More significantly, the export of Schedule
2 chemicals to non-parties of the CWC may occur for three years
after entry into force of the CWC, if end-use certificates are
presented. The certificate must include a statement by the
recipient state that the chemical will only be used for
permitted purposes, assurance that the chemical will not be re-
transferred, the types and quantities of the chemical, its end-
use, and the name and address of the end-user. There is no
limitation on quantities transferred. After three years,
transfer will be permitted only to States Parties.
For trade in Schedule 3 chemicals above 30 tons,
information must be submitted in the annual declarations for
the previous calendar year on aggregate national data for
export of each chemical and specification of export for each
country. There are no quantity limitations on the transfer of
Schedule 3 chemicals. Moreover, there is no point at which a
cut-off in trade in Schedule 3 chemicals will occur. This is
significant since most Schedule 2 chemicals are covered by
Australia Group controls and U.S. domestic law. That is to say,
nearly all of the U.S. chemical trade overseas derives from the
export of chemicals that are either listed on Schedule 3 or are
not controlled by the CWC at all.
C. MONITORING AND VERIFICATION
Introduction
Then-Vice President George Bush told CWC negotiators in
Geneva on April 18, 1984:
For a chemical weapons ban to work, each party must
have confidence that the other parties are abiding by
it * * * No sensible government enters into those
international contracts known as treaties unless it can
ascertain--or verify--that it is getting what it
contracted for.
In ascertaining the ``verifiability'' of the Chemical
Weapons Convention, however, the Executive Branch and the
Senate must do more than simply determine that the United
States is ``getting what it is contracted for.'' The U.S.
Government must also assess both the ``military significance''
of possible violations and the probability of timely detection
of these violations. In turn, this entails determining the
degree of risk to U.S. national security that would be posed by
possible violations and the timeliness of the warning that the
United States would require in order to respond effectively.
It is the responsibility of the intelligence community to
assess U.S. capability to monitor the compliance of other
parties to the Convention. In the past, such assessments have
been derived taking into account various cheating scenarios and
the implications of non-compliance. Other Executive branch
agencies share the responsibility for considering the military
significance of non-compliance in determining whether or not a
treaty is ``effectively verifiable.''
On the basis of administration testimony, our review of
classified information, and our understanding of the
widespread, dual-use nature of chemicals with weapons
applications, we must conclude that not only is the Chemical
Weapons Convention not effectively verifiable--it is not even
minimally verifiable.
Standards of effective verification
A cogent definition of ``effective verification'' was
offered the Committee during its consideration of the
Intermediate Nuclear Forces (INF) Treaty in 1988 by Ambassador
Paul Nitze:
What do we mean by effective verification? We mean
that we want to be sure that, if the other side moves
beyond the limits of the Treaty in any militarily
significant way, we would be able to detect such
violation in time to respond effectively and thereby
deny the other side the benefit of the violation.
The standard for effective verification was reaffirmed and
clarified by the Director of the Arms Control and Disarmament
Agency, Major General William Burns, in testimony before the
Committee on January 24, 1989 on ongoing negotiations for a
multilateral chemical weapons ban:
What is effective verification? It is a system by
which we can have a high level of assurance that we
will be able to detect a violation of the terms of the
treaty early enough so we can do something about it.
That is sort of a simple layman's definition, I think,
of effective verification.
Secretary of State James Baker further elaborated upon the
nature of an effective verification regime when responding to a
question from Senator Pell on the START Treaty in January,
1992:
A key criterion in evaluating whether the START
agreement is effectively verifiable is whether, if the
other side attempts to move beyond the limits of the
Treaty in any militarily significant way, we would be
able to detect such a violation well before it became a
threat to national security so that we are able to
respond. Additionally, the verification regime should
enable us to detect patterns of marginal violations
that do not present immediate risk to U.S. security.
However, no verification regime can be expected to
provide firm guarantees that all violations will be
detected immediately.
Administration views on effective verification of the CWC
Certainly previous administrations have developed a
yardstick of effective verification during Senate deliberations
over other arms control treaties. The committee noted as much
in Executive Report 102-53 in evaluating the verifiability of
the START Treaty. However, with the CWC the Clinton
administration has deviated from its predecessor's definition
of effective verification. As can be seen in the aforementioned
quotes, ``effective verification'' consisted of: (1) a ``high
level of assurance'' in the intelligence community's ability to
detect (2) a ``militarily significant'' violation in (3) a
``timely fashion.'' Moreover, an effective verification regime
should, according to Secretary of State Baker's testimony,
provide detection of patterns of marginal violation. These,
then, are the elements of the standard of effective
verification put forward in the 1980s during Senate
consideration of previous arms control treaties. The term
``effective verification'' itself arose from Senate insistence
upon more stringent conditions than the standard at the time--
``adequate verification.''
The committee received testimony in open sessions on the
verifiability of the CWC from a number of administration
witnesses. In nearly every appearance by Clinton administration
witnesses, the committee was told that the CWC is ``effectively
verifiable.'' The Director of the Arms Control and Disarmament
Agency, John Holum, stated on March 22, 1994, that ``We are
quite confident that the treaty is effectively verifiable.''
Walter Slocombe, Deputy Under Secretary of Defense for Policy,
echoed this judgment on May 13, 1994, when he stated: ``No
treaty is 100 percent verifiable. But the Chemical Weapons
Convention is effectively verifiable.''
Yet simply saying that the CWC is effectively verifiable
does not necessarily make it so. We believe, in light of other
testimony, that the Clinton administration is using a far
different yardstick when it assesses the effectiveness of the
CWC's verification regime. In particular, the administration
has repeatedly noted that it does not have a high degree of
assurance/confidence in its ability to detect noncompliance.
Nor, for that matter, has the administration indicated
confidence in the ability of the intelligence community to
detect small-scale production or patterns of ``marginal
violation.'' In short, the new definition of ``effective
verifiability'' seems less akin to the high standard set in the
late 1980's, and more similar to the less stringent standard of
``adequate verifiability'' adopted during the Carter
administration.
In this vein, then-Deputy Secretary of Defense, John
Deutch, testified before the Armed Services Committee on August
11, 1994, that:
Over time, through its declaration, routine
inspection, fact finding, consultation, and challenge
inspection mechanisms, the CWC's verification regime
should prove reasonably effective [emphasis added].
Degrees of confidence
In 1989, the United States made a major diplomatic ``push''
to move forward multilateral negotiations on a global chemical
weapons treaty. At that time, administration witnesses raised
concerns before the committee suggesting that a multilateral
treaty banning chemical weapons would be extremely difficult to
verify. On March 1, 1989, in response to a question by Senator
Pell asking if a chemical weapons ban could be monitored
sufficiently so as to ensure detection of a violation, the
then-Director of Central Intelligence, William Webster, stated:
As I said earlier, it is the most difficult challenge
that we have in the intelligence community. These
plants all can be converted. You can make a plant that
will look like a fertilizer plant or a pharmaceutical
plant.
In all the negotiations, we have been talking
verification as a very important part of any kind of
multilateral treaty. But this, in itself, is going to
be costly and difficult, and, presently, the level of
confidence is quite low [emphasis added], because,
unless you can go anywhere, any time, these plants can
be cleaned out and made to look like a legitimate
enterprise on very short notice.
There are some clear intelligence indicators, but
they can be removed.
Major General William Burns, Director of the Arms Control and
Disarmament Agency, testified on January 24, 1989, that:
The crucial issue, then, is verification. I believe
that verification of any chemical ban is going to be
extremely difficult. Probably more difficult than
verification of a strategic nuclear arms treaty.
General Burns further noted, in response to a question by
Senator Lugar, that:
Senator, I would not go so far as to say that a
treaty, because of its ultimate intention or overall
worth, should be accepted with a marginal capability to
verify it. I think, if we are going to sign a treaty in
arms control, it cannot be based on trust; it must be
based on verification.
So, I would not advocate the signing of a chemical
convention banning chemical weapons, unless we are sure
that we had an effective means to ensure that the
signatories would abide by the treaty.
Five years later, the intelligence community was unable to
provide the committee with assurances that the CWC could be
monitored with a sufficient degree of confidence to detect
noncompliance. The then-Director of Central Intelligence, James
Woolsey, declared in testimony before the Senate Foreign
Relations Committee on June 23, 1994:
The chemical weapons problem is so difficult from an
intelligence perspective, that I cannot state that we
have high confidence in our ability to detect
noncompliance, especially on a small scale [emphasis
added].
Walter Slocombe, Deputy Under Secretary for Policy, Department
of Defense, testified before the Committee on May 13, 1994
that:
Detecting illicit production of small quantities of
chemical weapons will admittedly be extremely
difficult, not least because of substantial overlap in
the technology for producing chemical weapons and the
technology for producing many industrial chemicals.
However, we are confident that we would be able to
detect large-scale production, filling, and stockpiling
of chemical weapons.
On August 9, 1994, in testimony before the Senate Armed
Services Committee, Major General John Landry, National
Intelligence Officer for General Purpose Forces, stated:
As I have indicated in the briefing on monitoring, we
are concerned about our ability to monitor prohibited
activities. * * * in fact, to the extent that they
maintain smaller, covert programs, it's very difficult
to detect, indeed.
General Landry further added:
* * * if we have never detected before a state as
having a program, and so it has remained undetected, a
covert program, and you are asking me can we detect it,
I am telling you that it is very difficult.
Similarly, then-Deputy Secretary of Defense, John Deutch,
testified before the Senate Armed Services Committee on August
11, 1994, that:
* * * I think both General Shalikashvilli and I have
been clear that this treaty is not perfectly
verifiable.
There are certain kinds of surreptitious production
of chemical agents that would be possible in this
regime, and the verification schemes which were set up
in the treaty, in our judgment, would not capture with
100 percent certainty, even taking into account the
very intrusive challenge inspection provisions allowed.
Finally, the Arms Control and Disarmament Agency, in accordance
with Section 37 of the Arms Control and Disarmament Act,
submitted an interagency report on March 18, 1994, entitled
``Chemical Weapons Convention Verification.'' That assessment
made the following determination:
The verification provisions of the CWC, in
combination with national intelligence means * * * are
insufficient to detect, with a high degree of
confidence, all activities prohibited under the
Convention [emphasis added]. The larger and more
systematic the violations, the higher the probability
that, over time, evidence of these would surface. The *
* * existence of a program with the scope and size of
the former Soviet Union's would be difficult to
completely conceal under the Convention.
While it may be true, as the administration has repeatedly
asserted, that it would be difficult to conceal the existence
of a program the scope and size of the former Soviet Union's,
most countries that envision a need for chemical weapons hardly
intend to wage World War III and conquer Western Europe. A
country desirous of developing a militarily significant
stockpile of chemical agent need not engage in a program
anything like that undertaken by the former Soviet Union.
Military significance and timely detection
The Chairman of the Joint Chiefs of Staff, General John
Shalikashvilli, testified before both the Senate Committee on
Foreign Relations and the Senate Committee on Armed Services
that the determination of military significance with respect to
chemical weapons does not readily translate to a single,
quantifiable answer. In testimony before the Foreign Relations
Committee on June 23, 1994, General Shalikashvilli noted:
A militarily significant quantity of chemical weapons
is very situationally dependent. Variables involved in
determining this quantity are the military objective,
weather, terrain, number of troops, type of chemical
agent used, the chemical agent weapons system, and
method of employment. And in the chemical weapons
defensive capability of the targeted force.
General Shalikashvilli clarified this view, however, in
response to a question later during his testimony, when he
noted that ``clearly, one SCUD missile containing roughly half
a ton of chemical is militarily significant to those on whom
that missile lands.''
In earlier testimony before the Armed Services Committee,
on August 11, 1994, General Shalikashvilli stated that:
In certain limited circumstances even one ton of
chemical agent may have a military impact * * * With
such variables in scale of target and impact of
chemical weapons, the United States should be resolute
that the 1 ton limit set by the Convention will be our
guide.
The bottomline is that a stockpile less than 100 tons of
chemical agent can prove of military significance. Unclassified
portions of the National Intelligence Estimate on U.S.
Monitoring Capabilities indicate that it is unlikely that the
U.S. will be able to detect or address violations in a timely
fashion, if at all, when they occur on a small scale. And yet,
even small-scale diversions of chemicals to chemical weapons
production are capable, over time, of yielding a stockpile far
in excess of a single ton.
In other words, the intelligence community has low
confidence in its ability to detect in a timely fashion the
covert production of chemical weapons which could produce
militarily significant quantities. This is not ``effective
verification.''
The CWC verification regime
According to a 1989 RAND study, ``Domestic Implementation
of a Chemical Weapons Treaty,'' the CWC verification regime is
intended to serve five primary functions:
1. assure the destruction of existing chemical-
weapons stocks and production facilities;
2. detect violation through rigorous accounting and
monitoring;
3. deter noncompliance by increasing the economic and
political costs of cheating;
4. build confidence in the regime by demonstrating
that States Parties are abiding by their treaty
obligations; and
5. provide strategic warning of a country's intent to
violate the treaty so that the other Parties can take
defensive measures.
The conclusions of the RAND study were more or less echoed in
the statements of Administration witnesses. Most significantly,
the Administration argued that some of the verification
problems associated with the CWC were more than offset by the
value of the verification regime as a deterrent and confidence-
building measure. In testimony before the Committee on June 23,
1994, then-Director of Central Intelligence James Woolsey
noted:
One question you might wish to consider is whether
the CWC will act as a deterrent for some states party
who might otherwise have initiated or retained chemical
weapons programs. In our judgment, the answer is yes.
Similarly, the Director of the Arms Control and Disarmament
Agency, John Holum, stated that on June 23, 1994 that ``rigor
of verification was an important value but was not the sole
value.''
Incorporating all of these objectives, the intelligence
community has categorized its responsibilities under the
Chemical Weapons Convention according to three specific tasks:
Detecting activities prohibited under the Convention,
such as the development, testing, production, storage,
transfer, or use of chemical weapons;
Assessing data declarations to the OPCW made by
States Parties; and
Monitoring eliminations and conversions.
Detecting prohibited activities
The first of these tasks, detection of chemical weapons-
related activities, is a function already performed by the
intelligence community. It also is a task about which the
intelligence community has very low confidences in its ability
to detect the production of chemical weapons. In discussing the
United States' ability to track the proliferation of chemical
weapons that General Landry noted, in testimony before the
Senate Armed Services Committee on August 9, 1994, that:
* * * we will talk specifically about our ability to
detect prohibited activities. This is at once our most
critical challenge and our most difficult task. The
community has taken the position that we have [deleted]
in our ability to detect prohibited activities.
* * * Now, when you ask why it is that this is such a
difficult task, it is because the national technical
means at our disposal [deleted]. I am talking now about
overhead reconnaissance means, both imagery and SIGINT
* * *
When you look at the other means available to the
intelligence community, for example, HUMINT, it is
potentially the most important of the means available
to us * * *. Unfortunately, HUMINT is very difficult to
rely upon * * *. In addition to that, you cannot
program HUMINT the way you can national technical
means, and frankly, the reporting lags the event fairly
significantly.
* * * There are other means that we have that today
give us some results, not as much as we would like. But
in the future they will give us a much better
capability, and we are staking much of our hopes on
those.
In general, the intelligence community has poor confidence in
its ability to detect prohibited activities, stemming from
three aspects of the chemical weapons problem: (1) the large
number of sites involved in chemical activities worldwide; (2)
the dual-use nature of chemical manufacturing and production;
and (3) the fact that most prohibited activity can be easily
concealed or disguised. The most significant cheating
activities for which no adequate technical means of detection
exist are:
development of clandestine production facilities
(which may have no observable features and which can be
quite small if devoted solely to agent production);
diversion of common chemicals with chemical weapons
applications;
production of non-classical agents which are not on
the CWC's Schedules and therefore are beyond the
capability of inspectors to detect;
stockpiling of chemical munitions which are,
according to the OTA, ``small, impossible to
distinguish visually from high-explosive shells, and
easy to conceal;'' and
development of binary agents which can be stored
separately and readily explained as stored commercial
chemicals.
According to a study prepared under contract from the
Defense Nuclear Agency by former ACDA Assistant Director
Kathleen Bailey and six others, entitled ``Noncompliance
Scenarios: Means By Which Parties to the Chemical Weapons
Convention Might Cheat,'' ``cheating on the Chemical Weapons
Convention can be technically easy and relatively
inexpensive.'' Using an area 40' x 40', a small portion of
which must be 40' high, a group of skilled chemists and
chemical engineers could produce 100 tons/year of an agent
utilizing chemical processes described extensively in open
literature and using equipment commonly found in university
laboratories. It would cost less than $2 million to build such
a plant to produce mustard phosgene, for instance. Indeed, as
the Aum Shinrikyo experience demonstrated, an even smaller area
with far more crude equipment may yield significant quantities
of agent.
Assessing data declarations
The CWC requires initial and annual data declarations on
all chemical weapons and chemical weapons production/storage
facilities and on all facilities that produce quantities of
certain types of chemicals beyond various thresholds. It falls
to the intelligence community to assess the veracity of data
supplied to the OPCW by various member states. The intelligence
community's monitoring confidences regarding this aspect of the
CWC are dependent upon: (1) access to the declarations made by
other states parties; and (2) the adequacy of baseline
information against which data declarations may be compared. In
the words of General Landry, the National Intelligence Officer
for General Purpose Forces, assessment will be hampered by
``many shortfalls in baseline knowledge * * * ''
ACDA's report on CWC verification notes that:
The U.S. will be able to verify the veracity of
declarations with a degree of confidence which will
vary with the State Party, the specific type of
declaration, the effectiveness of the inspection
regime, and the availability of parallel intelligence.
A January 18, 1994 ``Red Team'' assessment, ``Chemical
Weapons Convention Verifiability Assessment,'' prepared by
former ACDA assistant director Manfred Eimer and five others
under contract to ACDA, concluded that the CWC would be forced
to cover far too many chemical plants to prove highly
verifiable, and that therefore:
* * * the minimum reporting and production limits
have been set well above what constitutes a militarily
significant amount of agent, removing potentially
dangerous sites from the possibility of routine
surveillance and its deterrent effect.
In other words, because verification of the CWC is bedeviled by
the dual-use nature of chemicals in general, and by the
relative ease with which chemical weapons precursors may be
acquired, a truly verifiable regime would have required data
declarations from a far greater number of businesses.
Accordingly, we assess the contribution of the data declaration
regime of the CWC to U.S. monitoring of the chemical weapons
problem to be minimal. However, it is conceivable that the data
declaration requirements of the CWC may encourage ``whistle
blowers'' to reveal questionable or undeclared activities.
Monitoring eliminations and conversion
The intelligence community has a greater degree of
confidence in its ability to verify the destruction of chemical
weapons and agent stocks than it does in the other monitoring
requirements associated with the CWC. Given adequate access,
routine monitoring to check data declarations, systematic
inspections of chemical weapons storage, production and
destruction facilities, the intelligence community should be
able to determine, with a fair degree of assurance, that
declared stocks and facilities have been destroyed.
Ensuring continuing compliance at converted facilities,
however, faces similar problems as those associated with the
detection of prohibited activities. As General Landry noted to
the Armed Services Committee, ``It is when you get into the
issue of conversion of facilities and your ability to assure
yourself that those facilities will remain unrelated to
chemical warfare programs that we have some concern.''
We are concerned with the intelligence community's low
confidences regarding compliance at converted facilities in
light of the fact that the Defense Intelligence Agency stated
on May 6, 1996, that Russia will seek to retain a ``core
capability'' in the form of a ``production mobilization''
capability.
Andrei Zheleznyakov, a Russian scientist involved in
Russia's binary weapons program, commented to The Wall Street
Journal that ``the generals cannot be trusted with the
destruction of chemical weapons. The money received from the
Americans will definitely be channeled into the development of
new and more powerful toxic substances.'' Even more disturbing,
the General Accounting Office (GAO) drafted a report in May,
1995, documenting its finding that U.S. defense conversion
assistance was being channeled by Russia into chemical weapons
research. According to the GAO:
Recipients of two Center grants at three different
institutes told us they had been involved in nuclear
weapons testing and nerve agent research. They noted
that the grants were important in redirecting their
research and helping them survive the current economic
conditions.
* * * We found that Center-supported scientists are
not necessarily employed full-time on Center projects
and that they may spend part of their time working on
Russian weapons of mass destruction. They may remain
employed by FSU laboratories and most work less than
100 percent of their time on Center projects. Some work
as little as ten percent--raising the prospect that
they could spend the remainder of their time on their
institutes'' work on weapons of mass destruction.
The GAO assessment is particularly troubling given the
Defense Intelligence Agency's May 6, 1996, acknowledgment to
the Chairman of the Senate Select Committee on Intelligence
that Russia intends to produce chemical weapons, regardless of
whether or not it ratifies the CWC:
While some parts of the infrastructure of the Soviet/
Russian CW program have been downsized and
restructured, a core capability may be retained. The
future Russian CW program will rely more on the
technology to rapidly mobilize production and less on
the manufacture and retention of large quantities of
war material.
Furthermore, both the GAO and DIA studies would seem to lend
credence to allegations made by several Russian dissidents in a
letter to Senator Helms on August 25, 1994. At that time, the
President of Resistance International, Mikhail Makarenko,
wrote:
General Kuntsevich announced at a press conference at
the beginning of 1992: ``In Russia all problems of
bacteriological warfare have come to an end. We have no
stockpiles of biological weapons, consequently there is
no problem with their destruction.'' Nevertheless,
Russia's capability of waging biological warfare has
been preserved. It has not decreased by one millimeter.
For that reason, there exists a mobility branch in
the State Concern ``Biopreparat'' and a mobility plan
which covers what quantities and what formulae are
necessary to immediately start up again production of
the biological weapon ``S.Pl.2,'' upon receipt of
orders from the military. To begin this production
requires only a few weeks.
All equipment is now in a preserved state, in special
workshops at biochemical production centers functioning
today.
These workshops are standing ready at chemical
factories--in the Berdsk and Omutninsk chemical
factories and the ``Progress'' chemical factory and at
others.
We should not allow Russia to convert to commercial uses any
facility if we cannot be completely confident that a
mobilization capability will not be maintained and that
clandestine production will not occur at that plant.
Challenge inspections
The CWC provides for challenge inspections at any location
for the purpose of resolving questions of noncompliance. A
request for a challenge inspection must be submitted to the
Executive Council and to the Director-General of the Technical
Secretariat, along with evidence supporting the request. The
CWC requires that the Executive Council may either approve the
request or, within 12 hours after receipt of the request,
decide (by a three-quarter majority vote of all its members)
against carrying out the challenge inspection. Given the
impossible odds of mobilizing 31 of 41 members of the Council
to vote against a request 12 hours after it is issued, it is
expected that most challenge inspections will proceed.
Following the conduct of a challenge inspection, the
Executive Council will review the final report and, in addition
to making compliance determinations, will address concerns as
to whether the request was within the scope of the Convention
and whether the right to request a challenge inspection was
abused. If the Executive Council concludes that there was
abuse, it may recommend to the conference measures to be taken
against the requesting party, to include the assessment to the
requesting party all or a portion of the costs of the
inspection.
The CWC seeks to balance the need for intrusiveness to
verify compliance with the need for protection of sensitive
information of national security or commercial, proprietary
concern. Accordingly, the party to be inspected is obligated to
accept a challenge inspection. At the same time, the Convention
provides for managed--rather than unrestricted--access to a
challenged site. The CWC specifies time-frames of access,
limitations on observers, and a process of negotiated access
on-site.
The problem with this is that CWC challenge inspections,
while perfectly suitable for stealing trade secrets, possess
timeframes and loopholes that render extremely unlikely the
detection of a ``smoking gun.'' The CWC requires the OPCW to
provide an inspected State Party a minimum of 12 hours notice
prior to the arrival of an inspection team at the point of
entry. For declared facilities, the inspected party must
provide the inspection team access to the site within 27 hours
after the team's arrival at the point of entry. Thus a
inspected State Party will have a minimum of 39 hours warning
of an inspection at a declared facility, assuming that the
Director General dispatches an inspection team immediately (the
requirement for him to do so is not specified in the treaty).
For inspections of an undeclared facility, the inspected
country will again be given at least twelve hours advance
notice, and may take up to 108 hours to allow access of the
inspection team within the perimeter of the site. In other
words, a country may delay access to the interior of an
undeclared site for 4.5 days, and will have at least 5 days
advance warning.
On March 1, 1989, then-Director of Central Intelligence,
Judge William Webster, drew the Committee's attention to how
little time is required to successfully conceal evidence of
chemical weapons production:
Because much of the equipment needed to produce
chemical warfare agents can also be used to produce
legitimate industrial chemicals, any pharmaceutical or
pesticide plant can be converted to produce these
agents. A nation with even a modest chemical industry
could use its facilities for part-time production of
chemical warfare agents.
Libyan leader Qadhafi, in a speech delivered in
October, claimed that the facility at Rabta is intended
to produce pharmaceuticals, not chemical warfare
agents. He proposed opening the complex for
international inspection. But within fewer than 24
hours, some say 8\1/2\ hours, it would be relatively
easy for the Libyans to make the site appear to be a
pharmaceutical facility. All traces of chemical weapons
production could be removed in that amount of time.
Furthermore, delays ranging between two to sixteen hours have
proven problematic for U.N. inspectors in Iraq in their efforts
to detect Iraqi chemical, biological, nuclear, and ballistic
missile activities. A 5-day delay would allow ample time to
pursue concealment activities, such as producing pesticides on
a line used to manufacture nerve agent (e.g., production of the
pesticide methyl-parathion instead of the nerve agent sarin).
General John Landry, National Intelligence Officer for
General Purpose Forces, highlighted the problem posed by delays
for the Armed Services Committee on August 9, 1994:
Data declarations and the routine inspections will
give us some degree of assurance. The most important of
those, however, are the challenge inspections at
undeclared sites, at which we would have the
opportunity to tag munitions, to sample at the
perimeters that have been identified, and to inspect
commercial production facilities. Our concern here are
delays.
For example, under the current provisions that are
being worked out, those delays could take up to five
days, and there is a provision called ``managed
access,'' in which the perimeter of a challenge state's
area which we could sample would be chosen by the state
itself * * * These, in fact, limit the selection
against these targets that we are concerned with.
In addition to these concerns, once at the site, the challenge
inspection period is limited to 84 hours, and can be extended
only by agreement with the inspected party. Further, while the
requesting party can also request to have an observer accompany
the inspection team, the inspected party may disapprove the
observer's participation, or limit the access and activities of
the observer to the site perimeter.
In sum, the inspected party has the final say in
determining: (1) the extent of access to any particular place
or places within the final or requested perimeters; (2) the
particular inspection activities (including sampling); (3) the
performance of particular activities by the inspected party;
and (4) the provision of particular information. Nonetheless,
the inspected party is under the obligation to make every
reasonable effort to respond to the concerns underlying the
request, including offering alternate means to resolve
concerns.
Universality
In testimony before the Governmental Affairs Committee on
February 24, 1993, the then-Director of Central Intelligence,
James Woolsey, stated:
More than two dozen countries have programs to
research or develop chemical weapons, and a number have
stockpiled such weapons, including Libya, Iran, and
Iraq. The military competition in the always volatile
Middle East has spurred others in the region to develop
chemical weapons. We have also noted a disturbing
pattern of biological weapons development following
closely on the heels of the development of chemical
weapons.
Further details were provided in testimony before the Armed
Services Committee on August 9, 1994, by General John Landry
and members of the intelligence community. They identified 15
countries as having active programs. Six additional states were
classified as having either inactive programs, or as being
cases where insufficient information existed to make a
determination on the existence of a program. In March, 1995,
the Nonproliferation Center of the Central Intelligence Agency
released an unclassified estimate that gave a troubling
assessment of the likely impact the CWC would have upon the
proliferation of chemical weapons:
A number of states continue to pursue the development
or enhancement of a chemical weapons (CW) capability.
Some states have chosen to pursue a CW capability
because of the relatively low cost of--and low
technology required for--CW production. Moreover, they
believe that a CW capability can serve as both a
deterrent to enemy attack and as an enhancement of
their offensive military capabilities. Currently, at
least fifteen countries have an offensive CW program at
some level of development. The most aggressive chemical
weapons programs are in Iran, Libya, and Syria.
CW proliferation will continue to be a serious threat
for at least the remainder of the decade, despite a
number of arms control efforts, such as the Chemical
Weapons Convention (CWC). Several countries of
proliferation concern--including Libya, Syria, and
Iraq--have so far refused to sign the CWC, and some CW-
capable countries that have signed the CWC show no
signs of ending their programs.
While the intent of the CWC is to create a global chemical
weapons ban, some believe accomplishing that goal unlikely. Six
countries with chemical weapons programs--including all of
those with ``aggressive programs''--have not yet signed the
CWC, let alone ratified it. In this medium we are able to
discuss eleven countries believed to possess ongoing, offensive
chemical weapons capabilities have not ratified the Convention.
Countries believed to possess chemical weapons capability
that have not ratified the CWC: China \1\, Iraq, Pakistan \1\,
Egypt, Israel \1\, Russia \1\, Taiwan, Libya, Syria, Iran \1\,
and North Korea.
\1\ Indicates the country is a signatory to the CWC.
The following information is drawn from Administration
testimony, reports to the Congress, and a report by the Russian
Foreign Intelligence Service. We have included this section to
demonstrate: (1) that the countries possessing chemical weapons
will not be bound by the CWC; (2) that they will continue to
pursue chemical weapons regardless of whether or not the treaty
is ratified by the United States; and (3) these countries will
be only marginally hampered by outside efforts to constrain
their access to chemical weapons precursors. Some of them, such
as Libya, Iran, Iraq, and North Korea, are already subject to
the most stringent sanctions regimes imaginable--and still
their production of chemical weapons continues apace.
China
According to an April, 1996, report issued by the Office of
the Secretary of Defense, Proliferation: Threat and Response:
China has a mature chemical warfare capability and
may well have maintained the biological warfare program
it had prior to acceding to the Biological Weapons
Convention in 1984. It has funded a chemical warfare
program since the 1950s and has produced and weaponized
a wide variety of agents. Its biological warfare
program included manufacturing infectious micro-
organisms and toxins. China has a wide variety of
delivery means available, including ballistic and
cruise missiles and aircraft, and is continuing to
develop systems with upgraded capabilities.
* * * In the past, China has exported chemical warfare-
related material and missile technology and components
to Iran.
China has signed, but has not ratified the Chemical Weapons
Convention.
Egypt
The Russian Federation's Foreign Intelligence Service
released a report in March, 1993, entitled A New Challenge
After the Cold War: Proliferation of Weapons of Mass
Destruction. The report concluded that Egypt:
* * * has the scientific and industrial base that is
sufficient for the production of certain types of
chemical weapons involving the use of local and
imported raw materials. Specifically, techniques for
the production of nerve and blister agents have been
assimilated. There is information to the effect that
Egypt is displaying interest in overseas purchases of
warheads for liquid chemical agents. The stockpiles of
chemical agents available at this time are insufficient
for broad-based operations, but the industrial
potential would make it possible to produce additional
quantities in a relatively short period of time. The
substantial industrial capacity for the manufacture of
pesticides using techniques similar to chemical agent
production processes are a significant reserve for
chemical weapons production.
Egypt has neither signed nor ratified the Chemical Weapons
Convention.
Iran
On March 1, 1989, the then-Director of Central
Intelligence, Judge William Webster, testified that:
Iran's chemical weapons production facility is
located in the vicinity of Teheran.
Iran produces the blister agent mustard, blood
agents, and nerve agents, and, like Iraq, has filled
some bombs and artillery with these agents.
Subsequently, then-Director Woolsey added additional
information on February 24, 1993, in testimony before the
Governmental Affairs Committee:
Iran has an active chemical warfare program. It used
chemical weapons in response to Iraqi use during the
Iran/Iraq war, and it can still manufacture hundreds of
tons of chemical agent every year. Although it produces
primarily choking and blister agents, Iran may have a
stockpile of nerve agents. Biological weapons, if not
already in production, are probably not very far behind
there.
Director Woolsey additionally stated in a response to Senator
McCain:
Iran has produced at least several hundred tons of
blister, choking, and blood agents, and may have
produced as much as 2,000 tons of agent.
The Russian Federation's Foreign Intelligence Service reported
in March, 1993, that:
Iran possesses at least two types of chemical
weapons.
During the Geneva conference to formulate a global
convention to ban chemical weapons, in 1992 Iran's
representatives confirmed the presence of chemical
weapons in the Islamic Republic of Iran.
At present the industrial production of mustard gas
and sarin has been established in Iran. A plant for the
production of pesticides, which could be used as
precursors in the manufacture of nerve and blister
agents, operates not far from the capital.
In terms of the assortment of starting chemicals,
Iran is partially dependent upon imports.
The main chemical munition with which the Iranian
Army is equipped are 155 mm artillery shells for
American-made howitzers, 120 mm mines, and chemical
aerial bombs.
Research is being conducted in the area of
synthesizing chemical agents and the search for new
physiologically active substances.
Three years later, an April, 1996, report issued by the
Office of the Secretary of Defense, Proliferation: Threat and
Response made available yet more unclassified information.
Iran has been producing chemical agents at a steadily
increasing rate since 1984, and has cumulatively
produced at a minimum several hundred tons of blister,
blood, and choking agents. Tehran has weaponized some
of these chemical agents--a weapons stockpile to
support ground combat operations. In addition, Iran
could attempt to deliver chemical bombs against targets
such as airfields, ports, or oil installations across
the Persian Gulf.
Iran has increased defensive and offensive chemical
warfare training for its ground forces in the last two
years. Furthermore, it is making efforts to buy
defensive chemical equipment from foreign sources,
perhaps as a prelude to acquiring indigenous production
capability.
Although Iran has signed the CWC, its efforts to
establish an independent chemical production capability
and a wider program to put chemicals into battlefield
weapons cast doubt on its adherence to the agreement.
On May 10, 1996 the Central Intelligence Agency reported to the
Chairman of the Senate Select Committee on Intelligence that:
Iran's CW program is already among the largest in the
Third World, yet it has continued to expand and become
more diversified, even since Tehran's signing of the
CWC in January 1993. Iran's stockpile is comprised of
several thousand tons of CW agents, including sulfur
mustard, phosgene, and cyanide agents, and Tehran is
capable of producing an additional 1,000 tons of these
agents each year. In addition, Iran is developing a
production capability for the more toxic nerve agents
and is pushing to reduce its dependence on imported raw
materials. Iran has various dissemination means for
these agents, including artillery, mortars, rockets,
aerial bombs, and, possibly, even Scud warheads.
We are particularly troubled with this last assessment. Iran is
the only state with an ``aggressive'' chemical weapons program
that has signed the CWC. It has not ratified, and it clearly
has no intention of abiding by the treaty. The Defense
Intelligence Agency noted on May 6, 1996, that ``As part of
this expansion [of its CW program], Iran is making long-term
capital improvements to its CW program, suggesting that it
intents to maintain a CW- capability well into the future.''
This latest DIA assessment reinforces comments made on
November 1, 1995, by the Director of the Nonproliferation
Center of the Central Intelligence Agency, Gordon Oehler, who
testified before the Committee on Government Affairs that Iran
``also is developing a production capability for precursor
chemicals it needs to support chemical agent production, and
within several years may become virtually independent of
imported raw materials.''
Iraq
Judge Webster stated in 1989:
At Samarra, Baghdad produces the blister agent
mustard and the nerve agents tabun and sarin. Several
types of weapons, including bombs and artillery shells
and rockets, have been filled with these agents.
In his written statement for the record before the Committee on
Government Affairs on November 1, 1995, Gordon Oehler, Director
of the Nonproliferation Center, stated:
Iraq admitted producing 65 tons of chlorine, intended
for the production of VX, and had more than 200 tons
each of the precursor chemicals phosphorous
pentasulfide and diisopropylamine. Together, these
three precursors would have been sufficient to produce
almost 500 tons of VX.
Iraq developed a true binary sarin-filled artillery
shell, 122-mm rockets, and aerial bombs in quantities
beyond the prototype level.
An Al Husayn missile with a chemical warhead was
flight-tested in April 1990.
Lieutenant General Hughes, Director of the Defense
Intelligence Agency, testified before the Senate Select
Committee on Intelligence on February 22, 1996, that:
We now know that Baghdad had a more extensive
chemical warfare effort than originally believed,
including the production of VX and binary sarin for
delivery by artillery, rockets, and aerial bombs.
The April, 1996, Department of Defense report,
Proliferation: Threat and Response, found:
In the absence of UN monitoring or import controls,
Iraq could revive a viable chemical weapon capability
in a matter of months, despite war damage to its
production and storage facilities. The Iraqis still
have a domestic chemical industry, and converting some
of these plants from producing chemicals to producing
chemical warfare precursors and even agents would be
relatively straightforward. Iraq retains the capability
to deliver chemical agents using a variety of
munitions, including artillery shells and rockets,
aerial bombs, spray tanks, mortar rounds, and SCUD-type
missile warheads.
Iraq's past use of chemical weapons demonstrates its
willingness to ignore international norms of conduct.
Iraq has neither signed nor ratified the Chemical Weapons
Convention.
Libya
Then-Director of Central Intelligence, James Woolsey,
testified before the Governmental Affairs Committee on February
24, 1993:
Even as it publicly proclaims its good intentions,
Libya is constructing a second chemical weapons
production facility. The new facility recently
described in the media is yet another indicator of the
extent to which Libya--apparently unchastened--will go
to evade international attempts to prevent its
development of chemical weapons.
In a response to a question asked by Senator Levin, Director
Woolsey added:
Libya also is building a second CW agent plant near
Tarhunah and is attempting to establish an indigenous
precursor chemical production complex near Benghazi.
We estimate that Libya has produced at least 100 tons
of CW agents, mostly the blister agent mustard and
smaller amounts of the nerve agent sarin. The Libyans
also could produce the more toxic nerve agent soman in
the future. In our judgement, Libya would use chemical
bombs to deliver its agents. It may intend to develop a
chemical warhead for missiles.
The Russian Federation's Foreign Intelligence Service reported
in March, 1993, that:
Libya has certain stocks of chemical weapons--70-80
tons. Until recently, certain types of chemical agents
(sarin, mustard gas, phosgene) were produced in Libya,
but in limited quantities. The stock of chemical agents
that has been produced is considered inadequate for
conducting large-scale combat operations. * * *
Some experts are concerned about the construction of
a chemical plant in the Ubari area that is currently
under way. Nor can the possibility that research work
is continuing in the area of chemical weapons at the
facilities of the military research center in the
Gharyan region, where laboratory equipment and the
necessary chemical components purchased overseas are
concentrated, be ruled out.
Most recently, the April, 1996 report issued by the Office
of the Secretary of Defense found:
Although the Rabta facility appears inactive, Libya's
chemical weapons program continues to flourish. To
replace the Rabta facility, Libya has begun
constructing a large underground chemical warfare plant
near Tarhunah, a mountainous region about 60 kilometers
southeast of Tripoli. Putting the facility underground
masks its activities and increases its survivability in
case of attack. In the meantime, Libya will rely on
foreign sources for its precursor needs.
Libya claims it will not sign the CWC as long as
other countries in the region possess NBC weapons.
Libya almost certainly will keep its chemical warfare
program as long as Qadhafi remains in power.
Libya has neither signed nor ratified the Chemical Weapons
Convention.
North Korea
On February 23, 1993, then-Director of Central
Intelligence, James Woolsey, provided a written response to a
question by Senator McCain which stated:
North Korea is capable of indigenously producing nerve
gas, blood agents, and mustard-gas that could be
delivered by mortars, artillery pieces, multiple rocket
launchers, and Scud missiles. In addition, the North
Korean Air Force probably has bombs capable of
delivering chemical agents. Several of North Korea's
large chemical complexes could be capable of producing
chemical agents, but we have little information on
possible production rates and types of munitions.
Russia's Foreign Intelligence Service reported in March,
1993, that:
The information available to international experts
indicates that the DPRK has a program of military-
applied work in the chemical area and an adequate
industrial base.
The Department of Defense was more specific in its April,
1996 report, Proliferation: Threat and Response:
Since the late 1980's, North Korea has intensified
and expanded its chemical warfare program as part of
its military preparedness plan. Today, it can produce
large quantities of nerve, blister, and blood chemical
warfare agents, and it maintains a number of facilities
involved in producing or storing chemical precursors,
agents, and weapons.
North Korea has neither signed nor ratified the Chemical
Weapons Convention.
Pakistan
The Foreign Intelligence Service of the Russian Federation
reported in March, 1993, that:
There is no reliable information to indicate the
existence of chemical weapons in Pakistan. But research
of an applied military nature is being conducted in
this area.
* * * Available information on Pakistani chemical and
biological enterprises shows that they--mainly in
pesticide production--are employing technologies that
can be used for producing precursors of chemical agents
for military purposes.
* * * One of the new signs that prompt us to pay more
attention to the possible creation of several kinds of
chemical weapons is the purchase of large batches of
dual-use chemical raw materials. Thus there are reports
that phosphorous compounds used for creating chemical
weapons have been shipped into the country.
* * * From assessments by Pakistani environmental
protection specialists, we have learned about
significant supplies of pesticides (tens of thousands
of tons in the provinces of Sindh and Punjab) which are
in long-term storage. Considering the constant shortage
of pesticides in the country's agriculture, there is no
explanation for the accumulation of these chemicals.
Pakistan has signed, but has not ratified, the Chemical Weapons
Convention.
Syria
According to Judge Webster:
Syria began producing chemical warfare agents and
munitions in the mid-1980's, and currently has a
chemical warfare production facility.
Syria has nerve agents in some weapons systems.
Damascus conceals its program--it is quite closely
held--and, much like its Middle East neighbors, it is
quite likely to continue to expand its chemical warfare
capability.
The Russian Federation's Foreign Intelligence Service reported
in March, 1993, that:
Syria has a chemical weapons potential. The program
to organize the production of chemical weapons began
during the seventies. At that time the country created
a system for purchasing the appropriate equipment and
technologies from developed countries. Its main efforts
were concentrated on the creation of an industrial base
for the production of semifinished products necessary
for chemical agents for military purposes.
At the present time, Syria has developed production
capacity for mustard gas and organophosphorous nerve
agents based on indigenous raw material and basic
semifinished products.
It is typical that Syria does not regard the military
chemical agents available to the Syrian army as WMD.
According to Syrian military doctrine, military
chemical agents are components of military parity only
with Israel and will be used only in the event of
large-scale aggression by Israel against Syria.
Syria has neither signed nor ratified the Chemical Weapons
Convention.
Russia
According to a May 6, 1996, letter from the Defense
Intelligence Agency (DIA) to the Chairman of the Senate Select
Committee on Intelligence:
Russia has the world's largest CW program. The
Russian stockpile includes over 40,000 tons of chemical
agent, most of which is in weapons including artillery,
rockets, bombs, and missiles. Russia may also have CW
stocks in excess of those declared.
While Russia has signed the CWC, it has not ratified the
treaty. Nor has Russia agreed to implement a six-year old U.S.-
Russian bilateral Agreement on Destruction and Non-Production
of Chemical Weapons and on Measures to Facilitate the
Multilateral Convention on Banning Chemical Weapons (BDA).
Indeed evidence has come to light recently suggesting that
Russia never intends to implement the BDA, will not pursue
ratification of the CWC in the near term, and does not intend
to abide by the CWC if it ratifies.
According to DIA:
There are several factors affecting Russia's actions
regarding its CW programs and arms control commitments.
Russian officials probably believe they need a CW
capability to deter other nations from chemical
warfare. They cite a potential threat from purported CW
programs in the United States, other Western nations,
and several countries on or near Russia's borders.
In addition, Russian officials believe that
dismantling the CW program would waste resources and
rob them of valuable production assets. They maintain
that the CW production facilities should not be
destroyed but be used to produce commercial products.
Moreover, these officials do not want to see their
life's work destroyed, their jobs eliminated, and their
influence diminished.
We are particularly concerned about the views of Russia's
senior military leadership on the CWC, and on the elimination
of Russia's chemical warfare capability in general. On numerous
instances, the United States has received indications that key
elements within the Russian government staunchly oppose the
CWC. On October 25, 1994, for example, Dr. Lev Fyodorov, head
of the Union for Chemical Security, told the Interfax news
service that key officers from the Russian Ministry of Defense
had spoken against the treaty during the Russian Duma Defense
Committee's closed hearings on October 11, 1994.
Russian implementation of the BDA and intent to comply with the CWC
The U.S.-Russian bilateral destruction agreement (BDA) was
signed in June 1990 by Presidents Bush and Gorbachev. It banned
the production of chemical weapons agents; called for a
reduction in U.S. and Russian stocks to 5,000 tons by 2002,
requiring cuts of 80 percent in U.S. stocks and 90 percent in
Russian stocks; and, significantly, provided for on-site
inspections of storage, destruction and production facilities,
combined with data declarations.
We are concerned that the administration has refused to
provide the Senate, despite two consecutive letters from the
Chairman of the Foreign Relations Committee, with an updated
assessment of the Russian position regarding the BDA and the
CWC. We understand that Russian Prime Minister Chernomyrdin
wrote to Vice President Gore on July 8, 1996, stating that both
the BDA and the 1989 Wyoming Memorandum of Understanding (MOU)
have outlived their usefulness to Russia. Moreover, the Prime
Minister (1) tied Russian ratification of the CWC to U.S.
agreement to a Joint Statement linking ratification by the
United States to Russian ratification, (2) stated that the
American taxpayers must pay the cost of the Russian destruction
program, and (3) linked ratification to U.S. acquiescence to
Russia's position on conversion of its chemical weapons
facilities. This shift in Russian arms control policy will have
several important ramifications.
Questions regarding the size of Russia's chemical weapons
stockpile
In October, 1994, President Clinton submitted a report to
the Congress on Russia's commitment to comply with the
Biological and Chemical Weapons Conventions. He noted that `` *
* * Russia will have some difficulty fulfilling in a timely
fashion its obligations under the CWC * * * Progress [in
developing a comprehensive chemical weapons destruction
program] has been disappointing.'' Further, the President
observed that ``Russian implementation of the Wyoming MOU has
been problematic,'' and that ``the United States continues to
have concerns * * * '' The Arms Control and Disarmament
Agency's 1995 Pell Report amplified these concerns, noting that
Russia has refused to accept the BDA's key provisions and has
``taken a minimalist approach to declaration requirements and
verification costs of CWC production facilities that is
inconsistent with the CWC.''
Of the minimalist approaches taken by Russia, one of
serious concern is Russia's declaration on the Wyoming
Memorandum of Understanding that the total size of its
stockpiled chemical weapons was equivalent to 40,000 tons of
agent. This declaration has prompted challenges of the veracity
of Russian reporting. The Director of Central Intelligence,
James Woolsey, testified before the Foreign Relations Committee
on June 23, 1994, that the United States had ``serious concerns
over apparent incompleteness, inconsistency and contradictory
aspects of the data'' submitted by Russia under the Wyoming
MOU. On August 27, 1993, Admiral William Studeman, acting
Director of Central Intelligence, wrote to Senator Glenn
stating:
We cannot confirm that the Russian declaration of
40,000 mt is accurate. In addition, we cannot confirm
that the total stockpile is stored only at the seven
sites declared by the Soviets * * *
Articles in both The Washington Post and The Washington Times
alleged that the Defense Intelligence Agency has estimated the
Soviet stockpile could be as large as 75,000 metric tons.
Omissions in Russia's MOU data declarations have clear
implications for how Russia will interpret the various
provisions of the CWC. Because the BDA mandates annual updates
to the Wyoming MOU, Russian withdrawal from the BDA may also
signal that Russia will henceforth refuse to entertain any
additional U.S. questions about the size of its chemical
weapons stockpile or its binary weapons program. We are
concerned that Russia may intend to provide to the OPCW data
which mirrors that provided under the Wyoming MOU. This would,
in our view, serve as a clear indicator that Russia intends to
violate the CWC.
The Russian binary weapons program
Russia has consistently refused to provide information on
the status of its binary chemical weapons program. On June 23,
1994, then-Director of Central Intelligence James Woolsey
declared that ``the data we have received from Russia makes no
reference to binary chemical weapons or agents. That is
contrary to our understanding of the program that was initiated
by the former Soviet Union.''
Dr. Vil Mirzayanov, former chief of counterintelligence at
the State Union Scientific Research Institute for Organic
Chemistry and Technology, has stated that the Russian
Federation may continue work on novel nerve agents far more
lethal than any other known chemical agents--``Substance A-
230,'' ``Substance 33,'' and ``Substance A-232.'' In an article
in The Wall Street Journal on May 25, 1994, Dr. Mirzayanov
wrote:
It is very easy to produce binary weapons without
detection under the guise of agricultural
petrochemicals. The products easily pass all safety
tests and become registered with the government as
legitimate commercial products. The plant receives a
license for production and goes into operation. Neither
the firm's leaders, its staff, nor international
inspectors know that the chemicals are a component of a
new binary weapon.
As the public talks toward banning chemical weapons
progressed, the more intense became Russia's secret
development and testing of binary weapons * * * our
laboratories created Substance A-230, a weapon about
which I can only say that its killing efficiency
surpassed any known military toxin by a factor of five
to eight.
* * * Two more major achievements took place in 1990
and 1991. First, a binary weapon based on a compound
code-named Substance 33 passed site tests and was put
into production for the Soviet army.
* * * The second development was the synthesis of a
binary weapon based on Substance A-232, a toxin similar
to A-230. This new weapon, part of the ultra-lethal
``Novichok'' class, provides an opportunity for the
military establishment to disguise production of
components of binary weapons as common agricultural
chemicals; because the West does not know the formula,
and its inspectors cannot identify the compounds.
* * * Fifteen thousand tons of Substance 33 have
been produced int he city of Novocheborksarsk * * * But
our generals have told the U.S. that Novocheborksarsk
is turning out another substance known as VX.
Dr. Mirzayanov and other dissident Russian scientists have
claimed that Russia's binary weapons program has been
specifically crafted to evade detection under the verification
regime of the CWC. They allege that components for the binary
agents have been given legitimate commercial applications, that
they are not covered under the CWC's schedules, and that OPCW
inspectors will not know what they are examining when they come
across such chemicals.
Confidence in monitoring Russian conversion of production
facilities
The BDA provides for U.S. on-site inspections of Russian
storage, destruction and production facilities, combined with
data declarations. We agree with the Senate Select Committee on
Intelligence September 30, 1994, assessment that:
The United States would gain real monitoring benefits
(and both sides could expect financial benefits) from
implementing the BDA, rather than relying upon the OPCW
alone to inspect declared Russian and U.S. facilities.
Finally, any resolution of Russia's desire to convert,
rather than destroy, its CW facilities could set a
precedent for conversion under the CWC that would be
used by other states.
In a written response on June 23, 1994, to questions for the
record, Ambassador Stephen Ledogar stated that:
As a means of assisting the development of the
multilateral CWC, and later as a complement to it, the
United States and the Former Soviet Union, and later
the Russian Federation, negotiated a separate bilateral
agreement providing for destruction and mutual
verification of their chemical weapons stockpiles.
* * * In March, 1993, U.S. and Russian delegations
agreed ad referendum on detailed implementing
procedures and updated provisions for the BDA,
including allowing conversion of CW production
facilities (CWPF) consistent with CWC provisions. Since
that time, the Russian Federation has indicated that
they cannot accept some of these provisions and has
proposed significant changes, primarily to the portions
of the documents concerning conversion of former CWPF.
We assess Russian insistence on excluding several of its
chemical weapons-related facilities from the BDA's definition
of ``chemical weapons production facility,'' and hence from the
CWC's definition, to relate directly to its aforementioned
desire to maintain a clandestine chemical weapons production
capability. We believe that the U.S. refusal to accede to the
Russian position, which would have--in turn--strengthened the
Russian case for CWPF conversions under the CWC, may be a
primary reason that Russia has refused to implement the BDA.
If the BDA is not implemented, the United States will be
forced to verify Russian compliance with the CWC based upon a
smaller number of inspections than anticipated under the
bilateral arrangement, with inspections of Russian sites by the
OPCW rather than by U.S. personnel, and with no guaranteed U.S.
access to detailed inspection data. Without the bilateral
inspection regime, the intelligence community's already poor
confidence level in its ability to monitor Russian treaty
compliance will fall even lower.
The financial burden
Lack of agreement on the BDA will create additional
financial burdens for the member states of the Organization for
the Prohibition of Chemical Weapons, and the United States in
particular since the U.S. is slated to be assessed 25 percent
of the OPCW's costs. The OPCW currently is planning under the
assumption that the BDA will be in effect. On March 31, 1994,
John Gee, Director of the Provisional Technical Secretariat
(PTS) for the OPCW, stated that a key planning assumption of
the PTS was that:
the bilateral agreement of June 1990 between the
Russian Federation and the United States on destruction
and nonproduction of chemical weapons will be in force
and in the process of implementation. The commission
will recommend that the OPCW decide, pursuant to
articles IV and V of the convention, to limit
verification by the OPCW to measures complementary to
those to be undertaken under this agreement.
As Director Gee indicates, the CWC contains three specific
provisions designed to allow bilateral, reciprocal inspections
under the BDA to supplant international inspections of U.S. and
Russian chemical weapons facilities.
Without the BDA, which allows the U.S. and Russia to
conduct verification of one another's destruction programs, the
OPCW will need to increase the size of its international
inspectorate by at least 92 personnel. The purchase of
additional equipment and pay for additional inspectors will in
turn drive up the expected costs of the regime (of which 70
percent are associated with verification activities to begin
with) by between $30-60 million per year. Moreover, the CWC
requires States Parties to pay for monitoring of their chemical
weapons production, storage, and disposal facilities. We can
only predict that inspection by multinational, United Nations-
type organization will prove much more expensive than
inspections by the professional inspectorate of the Russian
Federation.
d. other issues
The Australia Group
Many chemical weapon agents are easily produced. In the
case of first-generation agents, the technology associated with
production is over 80 years old, and readily available to most
Third World countries. While later generations of chemical
weapons--nerve agents in particular--are more difficult to
produce (G-Series agents were first developed in the 1930's and
V-Series in the 1950's), the technology necessary for research,
development, and production of these chemical weapons is
becoming increasingly available.
One of the troubling aspects of chemical weapons production
is its virtual indistinguishability from production for
legitimate commercial purposes or for defensive chemical
weapons research. The dual-use nature of chemical weapons
derives both from the productive process, which involves the
use of standard chemical equipment, and the inherent toxicity
of many chemicals. Commercial and military programs both
utilize reactor vessels, distillation columns and filters, heat
exchangers, and a plethora of other pumps, pipes, and valves.
Nowhere are the similarities greater than between pesticide and
nerve agent production, stemming largely from the fact that
nerve agents were initially developed during research on
pesticides. As a consequence, many precursor chemicals for
chemical weapons agents have important civil uses.
The following chart illustrates two points: (1) the dual-
use nature of chemical weapons production, highlighting 20 of
the 54 chemical precursors controlled by the Australia Group--
an informal organization comprised of 29 countries that are
committed to ensuring that their exports do not contribute to
the spread of chemical or biological weapons; and (2) that the
CWC does not, and cannot, hope to control every chemical with
potential chemical weapons applications.
------------------------------------------------------------------------
Chemical Commercial uses \1\ Military uses
------------------------------------------------------------------------
3-Hydroxy-1-methylpiperidine.. Reagent in manufacture Not identified
of pharmaceuticals
and bleach precursors.
Potassium fluoride............ Catalyst; Glass GB, GD, GF
frosting and etching;
Reagent for various
chemical processes.
2-Chloroethanol............... Agent used to sprout HD, Q, Nitrogen
potatoes; Catalyst mustard (HN-1)
for olefin
polymerization;
Reagent for various
chemical processes.
Dimethylamine (DMA)........... Acid gas absorbent; GA
Additive in
electroplating and
antioxidants; Reagent
for various chemical
processes.
Dimethylamine hydrochloride... Ingredient in ink-jet GA
printing solutions;
Reagent for various
chemical processes.
Hydrogen fluoride............. Solvent extraction; GB, GD, GE, GF
Catalyst in petroleum
alkylation process;
Reagent for various
chemical processes.
Methyl benzilate.............. Additive to BZ
polyurethane; Reagent
for various chemical
processes.
3-Quinuclidone................ Coating stainless BZ
stell with silicone;
Reagent for various
chemical processes.
Pinacolone.................... Separation of GD
impurities from
acrylic acid; Reagent
for various chemical
processes.
Potassium cyanide............. Catalyst for benzoin GA, Hydrogen
condensation; cyanide
Fumigating agent;
Reagent for various
chemical processes.
Potassium bifluoride.......... Agent for etching, GB, GD, GF
frosting and
polishing glass.
Ammonium bifluoride........... Agent to frost or GB, GD, GF
polish glass; Reagent
for various chemical
processes.
Sodium fluoride............... Agent used in GB, GD, GF
fluoridation;
Component of laundry
sours; Reagent for
various chemical
processes.
Sodium bifluoride............. Agent used in GB, GD, GF
biological specimen
preservation;
Component of laundry
sours; Reagent for
various chemical
processes.
Sodium cyanide................ Agent used for mineral GA, Hydrogen
flotation; Fumigation cyanide,
agent; Reagent for Cyanogen
various chemical chloride
processes.
Phosphorus pentasulfide....... Ingredient in VG, VX
pyrotechnic
compositions; Reagent
for various chemical
processes.
Diisopropylamine (DIPA)....... Agent to remove acidic VX
compounds from gases;
Reagent for various
chemical processes;
Stabilizer.
Diethylaminoethanol (DEAE).... Corrosion and rust VG, VM
inhibitor; Curing
agent for resins;
Reagent for various
chemical processes.
Sodium sulfide................ Flotation agent in ore HD
processing; Reagent
for various chemical
processes; Reducing
agent.
Triethanolamine hydrochloride. Catalyst for synthesis Nitrogen
of imidized acrylic mustard. (HN-3)
polymers; Reagent for
various chemical
processes.
------------------------------------------------------------------------
\1\ Illustrative in some cases.
These chemicals, and others, are regulated by the Group
because of their direct applicability to the formulation of
chemical weapons. To date Australia Group members have
instituted controls not only on 54 chemical precursors, but on
related technical data, dual-use equipment, and other items
that could be used for chemical weapons or biological weapons
production.
Because the CWC does not control all chemicals which may be
used to formulate chemical weapons, and because most chemical
weapons can be developed using a multiplicity of approaches
(many chemicals involved in gold and silver extraction, for
example, can be utilized to produce the nerve agent Tabun, but
so too can Tabun be produced from pesticides), comprehensive
controls would be difficult to institute. Accordingly, we
believe that the Australia Group should remain a critical
element of U.S. nonproliferation strategy regardless of whether
the Senate consents to ratification of the CWC or not.
We would note that the CWC's implementation of partial
controls over a select group of chemicals for purposes of
minimizing the effect upon commercial industry will not
foreclose all avenues to the acquisition of a given chemical
weapon. Complete controls over these chemicals, however, would
have far reaching implications for a vast number of industries
and productive processes. Thus regardless of the CWC, control
over exports of dual-use chemicals to countries of chemical
weapons proliferation concern--many of whom have neither signed
nor ratified the CWC--will remain of paramount importance.
The danger here is that the CWC actually holds the
potential for accelerating the proliferation of chemical
weapons by entitling parties to Western assistance in
developing indigenous commercial chemical industries. Article
XI, paragraph 2(c) of the CWC creates grounds for such concerns
by stating that parties ``shall not maintain among themselves
any restrictions, including those in any international
agreements, incompatible with the obligations undertaken under
this Convention, which would restrict or impede trade and the
development and promotion of scientific and technological
knowledge in the field of chemistry for industrial,
agricultural, research, medical, pharmaceutical or other
peaceful purposes.'' Paragraph 2(d) of Article XI also enjoins
countries ``to not use this Convention to apply measures other
than those provided for, or permitted, under this Convention *
* *'' and Paragraph 2(e) requires each State Party to
``undertake to review their existing national regulations in
the field of trade in chemicals in order to render them
consistent with the object and purpose of the [CWC].''
Article XI further specifies that States Parties shall
``undertake to facilitate, and have the right to participate
in, the fullest exchange of chemicals, equipment and scientific
and technical information relating to the development and
application of chemistry for purposes not prohibited under this
Convention.'' This creates a controversy over the future of
export control regulations as to whether: (a) to keep
indefinitely existing export control measures at various levels
(national, regional, and international, such as the Australia
Group); (b) to maintain controls until the States Parties have
evidence that an export control system functions under the CWC;
or (c) upon entry into force to review all existing measures
and abandon organizations such as the Australia Group. At the
heart of this debate are different views on the purpose of the
CWC. While the Administration has promoted the CWC as a non-
proliferation/arms control treaty, some clearly view the CWC as
a treaty designed to facilitate trade in chemicals and
technology.
The debate continues in the PrepCom over the extent to
which Article XI's injunction to ensure the ``free and
unhampered transfer of chemicals'' for peaceful purposes should
supersede the obligation of CWC members under Article I not to
``assist * * * anyone to engage in any activity prohibited to a
State Party'' and the right of states to determine their own
national export policies. We are troubled by the recent move to
use Article XI even to facilitate the exchange of information
related to economic and technological development in the field
of chemistry, as put forward by the Executive Secretary in PC-
IX/B/1, (13 Oct. 1994). Even this could accelerate the spread
of chemical weapons capability to countries within the CWC who
are judged by the intelligence community as having no intent to
abandon their chemical weapons programs.
The dual-use nature of chemicals poses the troubling
prospect that foreign assistance could contribute to a program
that in turn could be diverted to weapons uses. Moreover, such
a diversion might well go undetected. This may explain why some
countries with poor arms control compliance records advocate
approval of the CWC.
Several countries opine that the CWC should be interpreted
to mean that no restrictions be placed on the chemical trade.
The governments of Iran, Cuba, India, and Pakistan--all
signatories of the CWC--are currently challenging the
legitimacy of Australia Group controls which prohibit them from
acquiring dual-use chemicals and chemical weapons-capable
production equipment. According to ACDA's 1994 Report to
Congress, ``this provision has some support within the Non-
Aligned Movement and will continue to be the subject of
contention * * * '' Similarly, one of the reasons for the
Chemical Manufacturers Association support of the CWC is the
anticipation, stated in testimony before the Committee on June
9, 1994, that ``an effective CWC could have the positive effect
of liberalizing the existing system of export controls
applicable to our industry's products, technologies and
processes.''
When questioned on this by the Senate Select Committee on
Intelligence, the Executive Branch stated:
Australia Group members * * * in August 1992 * * *
committed to review their export control measures with
a view of removing them for CWC States Parties in full
compliance with their obligations under the Convention.
The response added, however:
The United States and other Australia Group members,
while remaining committed to the August 1992 statement
and full implementation of Article XI of the CWC, have
also made clear their view that the export control and
nonproliferation measures they have undertaken as AG
members are fully consistent with all of the
requirements of the CWC and, indeed, help AG members to
fulfill their obligations under Article I of the CWC to
``never under any circumstances * * * assist, encourage
or induce, in any way, anyone to engage in any activity
prohibited to a State Party * * * ''
The Director of ACDA made a similar reassurance to the
Foreign Relations Committee, stating that the Australia Group
and domestic export controls are compatible with the objectives
of the treaty, and that they will be maintained.
We are unsure, however, how the administration can
unilaterally ensure that entry-into-force of the CWC will not
erode the consensus now existing among the 29 supplier states
of the Australia Group.
The constitutionality of the CWC
The right of the OPCW to inspect private, civilian
facilities must be reconciled with Constitutional protection
against unreasonable search and seizure. Given the large number
of inspectable facilities in the United States, it seems
inevitable that eventually a property owner will refuse to
consent to an international inspection. The fourth amendment to
the Constitution provides that:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
The Supreme Court upheld the notion that the chemical
industry retains fourth amendment rights in Dow Chemical Co. v.
United States. The issue in Dow was whether overflight of the
plant by an Environmental Protection Agency aircraft
constituted a search. While the Supreme Court found that it did
not, it also noted that:
Plainly a business establishment or an industrial or
commercial facility enjoys certain protections under
the fourth amendment.
* * * Dow plainly has a reasonable, legitimate, and
objective expectation of privacy within the interior of
its covered buildings, and it is equally clear that
expectation is one society is prepared to observe.
The difficulty in reconciling the CWC inspection regime
with the fourth amendment stems from a combination of CWC
obligations. While constitutional law has treated warrantless
administrative search schemes void of penal consequences with
some leniency (Donovan v. Dewey and New York v. Burger),
Article II of the CWC requires State Parties to enact penal
legislation. As Barry Kellman, Professor of Law at DePaul
University, succinctly notes, because this creates the
possibility that ``inspections might lead to the discovery of
evidence of CWC violations that the treaty itself requires to
be punished under domestic law, an accused may invoke rights of
due process.''
Additional, other legal questions not discussed in this
report pertain to takings under the fifth amendment and
disclosure of confidential business information by agencies of
the United States pursuant to a Freedom of Information Act
request.
Finally, the CWC contains two provisions which infringe
upon the Senate's Constitutional responsibilities to consider
treaties. First, paragraph 3 of Article XV provides that:
3. Amendments shall enter into force for all States Parties
30 days after deposit of the instruments of ratification or
acceptance by all the States Parties referred to under
subparagraph (b) below:
(a) When adopted by the Amendment Conference by a
positive vote of all States Parties with no State Party
casting a negative vote; and
(b) Ratified or accepted by all those States Parties
casting a positive vote at the Amendment Conference.
We concur with the concerns of the Senate Select Committee
on Intelligence on this issue. It would be possible, according
to Article XV, for an amendment to the CWC to be adopted
without that amendment being submitted to the Senate for advice
and consent. Moreover, this provision could allow for the
adoption of an amendment over the objections of the Senate if
the U.S. were to abstain or not vote when the matter was
decided in the Amendment Conference.
Second, Article XXII states:
The Articles of this Convention shall not be subject
to reservations. The Annexes of this Convention shall
not be subject to reservations incompatible with its
object and purpose.
This provision is directly at odds with the right of the Senate
to ratify treaties subject to understandings and reservations
regarding specific treaty provisions.
Enforceability
Article XII sets forth general measures that may be taken
to address noncompliance, including the possibility of
restricting or suspending a State Party's rights and
privileges, recommending sanctions, or bringing the issue
before the United Nations. The question of penalties for
misbehavior was addressed late in the negotiations over the
CWC. The CWC's lack of specificity regarding both what
sanctions would be appropriate and how sanctions would be
applied is indicative of the lack of consensus that existed in
Conference on Disarmament. The Convention is not specific about
sanctions that could be imposed against violators. While minor
violations would be handled within the Executive Committee of
the Organization for the Prohibition of Chemical Weapons, in
the instance of more serious violations, the Conference of
States Parties ``may recommend'' unspecified collective
measures. The U.N. General Assembly and the Security Council
would consider violations of ``particular gravity.''
Supporters of the Convention argue that this lack of
specificity gives a degree of flexibility and raises a
potential violator's uncertainty about penalties. We cannot see
the logic in this. The CWC's enforcement sanctions are too
vague to serve as a deterrent. Moreover, the lack of
specificity undermine the value of the CWC in creating an
international norm. If the experience with Iraq--a clear
instance of the use of poison gas in war--suggests anything, it
is that international opprobrium will be impossible to obtain
under most circumstances. In this instance, five days of debate
in an international conference convened at the initiative of
the U.S. in January 1989 to condemn Iraq's use of chemical
weapons during its war with Iran yielded a final document that
did not even mention Iraq by name. Unlike the unambiguous
evidence of Iraqi use of chemical agents against Iran, many
cases of noncompliance with the CWC should be expected to yield
no ``smoking gun.''
E. BUDGETARY IMPACT
U.S. Government Costs
The total cost of the CWC to the United States has yet to
be fully evaluated, but consists of direct and indirect costs.
According to a June 1992 study concluded by the Institute for
Defense Analyses, CWC implementation costs to the U.S.
Government will exceed $200 million annually over a 15-year
period.
A sizeable percentage of this projection derives from the
obligation of each member state, pursuant to Article VIII of
the Convention, to pay for the OPCW's activities ``in
accordance with the United Nations scale of assessment.'' As a
practical matter, this means the U.S. will shoulder one quarter
of the costs of implementation and verification of the CWC
should it elect to ratify the Convention. On April 19, 1996,
Secretary of State Warren Christopher responded to a question
by the Chairman stating that ``the Administration anticipates
that the U.S. assessment for the OPCW for FY97 will be $24.935
million.''
The current budgetary assumptions of the OPCW indicate a
total operating cost of between $100 and $200 million, though
this figure is subject to cost growth in such events as non-
implementation of the BDA, ratification of the CWC by states
possessing both chemical weapons and large inspectable
territories, absence of the availability of ``dedicated
airlift,'' and continued rent increases on the OPCW
headquarters at The Hague. In sum, the assessed cost to the
U.S. are substantial, open-ended, and may ultimately exceed $50
million per year.
Beyond the U.S. assessment for the OPCW, a cost estimate
prepared by David Evans of Analytic Services, Inc., determines
that ``the Department of Defense has planned approximately $50
million annually for the [Armed] services to comply with the
CWC. In addition, the U.S. spends approximately $10 million
annually on research, development, test, and evaluation of
equipment and procedures to support the implementation of the
CWC.''
To this must be added the salaries and expenses associated
with personnel in the Department of State, ACDA, the Department
of Commerce, Department of Defense, the Intelligence Community,
and various law enforcement agencies with CWC responsibilities.
Clearly this figure will be difficult to track.
The following table identifies those costs that are
estimable:
FINANCIAL COSTS OF CWC IMPLEMENTATION TO THE UNITED STATES--ANNUAL COSTS
TO U.S. GOVERNMENT: $185,700,000-$210,700,000
------------------------------------------------------------------------
------------------------------------------------------------------------
U.S. Assessment to the Organization $25,000,000-50,000,000.
for the Prohibition of Chemical
Weapons \1\.
U.S. Mandatory Contributions Under Undetermined.
Article X of the CWC.
U.S. National Authority Costs........ $9,500,000 \2\.
Treaty Implementation Costs \3\:
Army $33,500,000.
Navy $4,700,000.
Air Force $100,000.
On-Site Inspection Agency $45,900,000.
Defense Nuclear Agency (R&D) $12,000,000.
Assistance to Russia For Chemical $55,000,000 \4\.
Demilitarization.
------------------------------------------------------------------------
\1\ The U.S. will pay 24.96% of the OPCW's Total Operating Expenses.
Total expenses are estimated to range between $100-$200 million per
year.
\2\ Based on ACDA's FY96-97 Authorization Request, adjusted to account
for funds contributed as assessment to the Preparatory Commission of
the OPCW.
\3\ Based on March 1994 GAO Study Projections for Fiscal Years 1994-99.
\4\ Based on March 1994 GAO Study and March 1994 DoD testimony
indicating that the U.S. is prepared to provide $300 million or more
over 8 years to help build a pilot destruction plant.
Cost to Industry
The cost of filling out forms
It is difficult--if not impossible--to predict the costs
posed by the CWC to industry. However, based upon industry
responses, it is possible to establish a range of costs
associated with filling out the additional government forms
that will be required if the Senate ratifies the CWC. Some
companies conducted comprehensive internal reviews of their own
based upon the instruction manual and draft regulations
compiled by the Department of Commerce. For the sake of
confidentiality, we will not identify specific companies here,
but will simply report their findings. Cost estimates
associated with the reporting burden ranged from $1,500/$2,000
for two small companies producing DOC's, to $250,000 estimated
by a large, diversified company. Responses falling within that
range included: $8,000; $10,000--$20,000; $20,000; $70,000; and
$50,000--$100,000. If the average cost to a company for filling
out CWC forms were but $20,000, and only 3,000 companies were
so affected, the total cost to the economy would still
approximate $60 million per year. If 8,000 companies are
affected, the cost would equal $160 million per year.
Clearly, the cost to some businesses will be less than
$20,000 annually, but for many others it will be far greater.
Moreover, we expect more than 3,000, but fewer than 8,000,
companies to be affected by this treaty. Without precise
figures, it is impossible to estimate.
The cost of hosting routine inspections
ACDA informed the Senate Select Committee on Intelligence
in September, 1994, that routine inspection costs for 100
Schedule 1 and 2 facilities would approximate $10,000 per
inspection, $5,000 per inspection of 200 Schedule 3 facilities,
and $2,000 per inspection of 6,000 DOC plants. Routine
inspections of Schedule 3 and DOC plants are limited, however,
to no more than 20 combined. ACDA further estimated:
ACDA's rough estimate is that initially U.S. industry will
receive 53 inspections per year (40 at Schedule 1 and 2 sites,
13 at Schedule 3 sites) * * * There will be no inspections of
``other chemical production facilities'' [DOCs] until the
fourth year after entry into force, when there could be up to
20 inspections per year of these facilities and Schedule 3
facilities combined.
While we have questions about these figures, ACDA did state
that this is ``a very rough estimate.'' Accordingly, one might
derive the following formula for inspections. [(40 x $10,000) +
(13 x $5,000) + (7 x $2,000)] = $479,000 per year.
If, however, the OPCW inspects every Schedule 1 and 2
facility every year, and the costs are closer to $20,000, with
costs for Schedule 3 and DOC plants closer to $10,000, with a
reduced number of inspectable sites (40 Schedule 1 and 2 plants
and 100 Schedule 3 plants), the following would be the case:
[(40 x $20,000) + (20 x $10,000)] = $1 million.
In general, we believe that ACDA: (1) underestimates the
number of U.S. businesses that will be affected; and (2)
underestimates the cost to a company posed by a routine
inspection. Only time will tell just how expensive this
provision of the CWC will be.
The cost of challenge inspections
During administration briefings held for Senate staff in
August, 1996, the administration stated that it expected no
more than 2 challenge inspections per year to be mounted
against the United States. If this is the case, then based upon
an April 1993 letter to the Congressional Office of Technology
Assessment from the Office of the Secretary of Defense (which
put challenge inspections costs at between $200,000 and
$500,000), we estimate that no more than $1 million would be
expended per year by industry to comply with this provision of
the CWC. In cases where a challenge inspection were directed
against a government facility, clearly there would be no cost
to industry at all. However, the OPCW is planning for both
Russia and one other chemical weapons possessor state to ratify
the treaty. If this does not occur, significant resources will
be available for the conduct of additional challenge and
routine inspections.
ANNUAL COSTS TO INDUSTRY: UNDETERMINED
------------------------------------------------------------------------
------------------------------------------------------------------------
Costs Associated With Data Reporting Unestimated 1.
Requirements.
Costs Associated With Challenge $200,000--$500,000 per inspection
Inspections. 2 (c. $1 million).
Costs Associated With Annual Routine $10,000--$20,000 per inspection 3
Inspections. (c. $1 million).
Costs Associated With Plant Closure/ Unestimated
Shutdown During Inspections.
Costs Associated With Disclosure of Unestimated (Congressional Office
Confidential Business Information. of Technology Assessment
determined that the U.S. chemical
industry loses between $3-6
billion per year in counterfeited
chemicals).
U.S. Fines for Noncompliance........ $50,000 per violation for actions
involving Schedule 1 or 2
chemicals; $5,000 per failure to
submit documents and records;
$25,000 per violation in doing on-
site inspection.
------------------------------------------------------------------------
\1\ February 26, 1993 CMA Response to Congressional Office of Technology
Assessment Questionnaire indicated that the cost to U.S. industry in
complying with U.S. environmental regulations exceeded $4,900,000,000
annually. The CWC will require more information from more companies
than current regulations.
\2\ Office of the Secretary of Defense, letter to the Congressional
Office of Technology Assessment, April 1993. Estimates of the upcoming
Russian Mutual Reciprocal Inspection at the Y12 plant at Savannah
River are estimated to reach $500,000. Costs for hosting CWC
inspections at the high explosives applications facility located at
Lawrence Livermore National Laboratory have been estimated at $350,000
to $400,000 (with $150,000 in non-recurring costs).
\3\ Conference on Disarmament, ``Report on a United States National
Trial Inspection Exercise,'' document No. CD/922, June 22, 1989, p.
13. According to a March 1994 GAO Study, the CMA estimates that costs
associated with inspections will total roughly $20 million per annum.
F. THE CHEMICAL WEAPONS CONVENTION
On April 25, 1996, the Chairman offered a Resolution of
Ratification for the Chemical Weapons Convention that addressed
many of the concerns raised in this report. The following is
the speech he gave in introducing the Chairman's Mark:
Mr. Helms. This afternoon the Committee fulfills its
obligation as required by the unanimous consent agreement
entered into on Pearl Harbor Day, December 7, 1995, to consider
the resolution of ratification for the Chemical Weapons
Convention (CWC).
In recent months I have presided over three hearings of
this Committee dedicated to examining the Chemical Weapons
Convention. We heard testimony from the Secretary of State, the
Secretary or Defense, and a number of experts on arms control.
While I intend no disrespect to the distinguished
Administration witnesses, none of the testimony convinced me
that the Convention--as submitted to the Senate--serves the
national security interests of the United States. In fact, many
of the experts who appeared before this Committee questioned
the Convention's verifiability and its impact upon industry and
business in the United States. I have circulated for every
Senator's consideration brief excerpts from some of the
testimony critical of this Convention.
I have stated before that we all agree that a verifiable
treaty, accomplishing real reductions in these abhorrent
weapons, will clearly be in the national security interests of
the United States. However, I do not believe that the treaty
submitted to the Senate is verifiable. Nor will it reduce the
arsenals of terrorist countries and other nations hostile to
the United States. Several countries identified by our
government as possessing chemical weapons have not even signed
the Convention, let alone ratified it. Yet those countries--
Libya, Syria, Iraq, North Korea--are the countries most likely
to use chemical weapons against America or our allies.
Moreover, not one country outside of Europe that has ever
had an offensive chemical weapons program has ratified this
Convention, with the exception of Japan. Not one. Neither
Communist China nor Iran, for example, have ratified.
Furthermore, Russia--the country that possesses the largest
and most sophisticated chemical weapons arsenal in the world--
has signaled that it has no intention of abiding by its
commitments to eliminate its chemical weapons stockpile,
despite our bilateral agreement to get rid of these terrible
weapons that we entered into 6 years ago. There has not been
one iota of progress over the last 6 years in persuading the
Russians to implement their agreement. To the contrary, Russia
consistently has refused to come clean about the true size of
its chemical weapons stockpile, and about the status of its
binary chemical weapons program. This, it seems to me, is an
ominous sign of things to come in terms of even the slightest
show of good faith regarding Russia's willingness to eliminate
its chemical weapons capabilities.
With respect to verifiability, even the senior most
administration officials have conceded that the Convention
submitted to the Senate is not verifiable. The then-Director of
Central Intelligence, James Woolsey, declared in testimony
before this committee on June 23, 1994, that ``the chemical
weapons problem is so difficult from an intelligence
perspective, that I cannot state that we have high confidence
in our ability to detect noncompliance, especially on a small
scale.'' Based on what I have learned in recent months, this
judgement is every bit as accurate today as it was in 1994, and
every bit as troubling.
I was equally concerned to learn recently that the
Intelligence Community has determined that not one country that
is pursuing chemical weapons--with the exception of the United
States and its allies--can be expected to abide by the treaty.
In view of these serious concerns with the Convention, I
believe that the Senate should consent to ratification only
with the strictest possible conditions, ensuring that we are
party to a verifiable treaty that is binding on those nations
most likely to threaten our national security. This resolution
of ratification addresses a number of key concerns:
Now, as I have already said, the CWC must be verifiable. I,
for one, believe it to be a misleading and dangerous precedent
for the United States to become party to an unverifiable
national security treaty. Verifiability should be upheld as a
cornerstone of U.S. national security, and we should not--if I
may be allowed to recall a quote from the testimony of Douglas
Feith, Deputy Assistant Secretary of Defense for Negotiations
Policy during the Reagan administration--act like the Groucho
Marx character in the movie who said, ``Those, sir, are my
principles, and if you do not like those, I have others.''
Accordingly, this resolution contains conditions on
monitoring, verification, and noncompliance which will require
the President to certify to the Congress that the Convention is
verifiable before moving ahead with its implementation.
Second, the CWC must accomplish real reductions in the
chemical weapons arsenals of those countries of greatest
concern to the United States. This resolution contains key
provisions which will require the President to secure agreement
from Russia, Communist China, Iraq, Iran, Syria, North Korea,
and other states with chemical arsenals, that they, too, will
observe and be bound by this global ban on chemical weapons,
prior to the deposit of the United States instrument of
ratification.
Third, this resolution will ensure that we learn from our
experience with the United Nations, and that, in creating a new
international bureaucracy to verify the Convention, we do not
agree to disproportionate cost assessments, burgeoning
administrative overhead, waste, corruption, nepotism, and the
compromise of U.S.-provided intelligence. There are specific
conditions in the resolution to establish an office of an
independent inspector general, create intelligence- and cost-
sharing arrangements, and ensure that the United States does
not pay disproportionately for this treaty.
Without a provision to limit U.S. assessments to the
Organization for the Prohibition of Chemical Weapons (OPCW),
the United States will end up paying 25 percent of the annual
costs of the Organization. That should be compared to Russia's
5.7 percent. This provision will ensure that our contributions
to the OPCW take into account the fact that the U.S. has
already agreed to foot the bill for verifying and helping
destroy Russia's chemical weapons arsenal.
Finally, this resolution will ensure that we do not fall
into the idealistic American response of complacency, as seems
so often to be the case when the Senate concludes a treaty
banning a whole class of weapons. If we conveniently assume
that this treaty will solve all of our chemical weapons
problems, we may fall victim to the inevitable effect of
reducing support for the entire range of programs necessary to
deter attack by chemical weapons, and to maintain our troops
capability to defend against chemical weapons and other
threats. This resolution requires the United States to maintain
robust chemical warfare defenses, to re-evaluate our national
deterrence doctrine, and to permit commanders in the field to
use riot control agents to protect the lives of U.S. servicemen
and innocents.
Each and every provision of this resolution of ratification
is essential to ensuring that the Chemical Weapons Convention
enhances, rather than reduces, our national security. I urge my
colleagues to consent to ratification only if all of the
aforementioned concerns have been adequately addressed.
G: THE CHAIRMAN'S MARK
Resolved (two-thirds of the Senators present concurring
therein), That (a) the Senate advise and consent to the
ratification of the Convention on the Prohibition of the
Development, Production, Stockpiling and Use of Chemical
Weapons and on Their Destruction, signed at Paris on January
13, 1993, including the following annexes, all such documents
being integral parts of and collectively referred to in this
resolution as the ``Convention'' (contained in Treaty Document
10321), subject to the conditions of subsection (b), the
understandings of subsection (c), and the declarations of
subsection (d):
(1) The Annex on Chemicals.
(2) The Annex on Implementation and Verification
(also known as the ``Verification Annex').
(3) The Annex on the Protection of Confidential
Information (also known as the ``Confidentiality
Annex'').
(b) Conditions.--The advice and consent of the Senate to
the ratification of the Convention is subject to the following
conditions, which shall have binding effect under United States
law and shall be included in the instrument of ratification of
the United States to the Convention:
(1) Effect of article XXII.--Article XXII of the
Convention shall not apply to the United States.
(2) Violation of the prohibition on use of chemical
weapons.--The Convention shall cease to be binding on
the Government of the United States with respect to the
use of chemical weapons in war in the event that
another party to the Convention fails to respect the
prohibition on use of chemical weapons laid down in the
Convention and uses chemical weapons against the United
States or its allies.
(3) Limitation on the scale of assessment.--
Notwithstanding any provision of the Convention, the
United States shall pay as a total annual assessment
pursuant to paragraph 7 of Article VIII not more than
the percentage of the annual costs of the Organization
for the Prohibition of Chemical Weapons (in this
resolution referred to as the ``Organization'')
assessed to any other party to the Convention, or
$15,000,000, whichever is lesser.
(4) Financial contributions.--(A) Notwithstanding any
provision of the Convention, no funds may be drawn from
the Treasury of the United States for payments or
assistance (including the transfer of in-kind items)
under paragraph 16 of Article IV, paragraph 19 of
Article V, paragraph 7 of Article VIII, paragraph 23 of
Article IX, Article X, or any other provision of the
Convention, without specific statutory authorization
and appropriation.
(B) None of the funds appropriated or otherwise made
available by law for the purposes of implementing
paragraph 4 of Article VII of the Convention may be
made available to the United States Arms Control and
Disarmament Agency.
(5) Establishment of an inspector general.--(A)
Before the deposit of the instrument of ratification of
the United States to the Convention (in this resolution
referred to as the ``United States instrument of
ratification''), the current internal audit office of
the Preparatory Commission has been expanded into an
independent Office of Inspector General whose functions
will be transferred to the Organization upon its
establishment. The Office of the Inspector General
shall be obligated to protect confidential information
pursuant to the obligations of the Confidentiality
Annex. The Office of the Inspector General shall--
(i) make investigations and reports relating
to all programs of the Organization;
(ii) undertake both management and financial
audits, including --
(I) an annual assessment verifying
that classified and confidential
information is stored and handled
securely pursuant to the general
obligations set forth in Article VIII
and in accordance with all provisions
of the Annex on the Protection of
Confidential Information; and
(II) an annual assessment of
laboratories established pursuant to
Paragraph 55 of Part II of the
Verification Annex to ensure the
Director General is carrying out his
functions pursuant to Paragraph 56 of
Part II of the Verification Annex;
(iii) undertake performance evaluations
annually to ensure the Organization has
complied to the extent practicable with the
recommendations of the Inspector General;
(iv) have access to all records relating to
the programs and operations of the
Organization;
(v) have direct and prompt access to any
official of the Organization; and
(vi) be required to protect the identity of,
and prevent reprisals against, all
complainants.
(B) The Organization shall ensure, to the extent
practicable, compliance with recommendations of the
independent Inspector General, and shall ensure that
annual and other relevant reports by the Inspector
General are made available to all member states
pursuant to the requirements established in the
Confidentiality Annex.
(6) Cost-Sharing Arrangements.--(A) Prior to the
deposit of the United States instrument of
ratification, and annually thereafter, the President
shall submit a report to Congress identifying all cost-
sharing arrangements with the Organization.
(B) The United States shall not undertake any
research or development expenditures for the purposes
of refining or improving the Organization's regime for
verification of compliance under the Convention,
including the training of inspectors and the provision
of detection equipment and on-site analysis sampling
and analysis techniques, without first having concluded
and submitted to the Congress a cost-sharing
arrangement with the Organization.
(7) Intelligence sharing and safeguards.--
(A) Provision of intelligence information to the
organization.--(i) No United States intelligence
information may be provided to the Organization or to
any officials or employees thereof, unless the
President certifies to the appropriate committees of
Congress that the Director of Central Intelligence (in
this paragraph referred to as the ``DCI''), in
consultation with the Secretary of State and the
Secretary of Defense, has established and implemented
requirements which have been formally agreed to and
implemented by the Organization for protecting
intelligence sources and methods as a condition for the
provision of United States intelligence information to
the Organization. Those requirements shall include, but
not be limited to--
(I) the adoption by the Organization
of formal security violation
investigation procedures and security
clearance background investigation
procedures certified by the DCI as
comparable to United States procedures;
(II) the agreement by the
Organization to protect United States-
provided intelligence information in a
manner certified by the DCI as
comparable to protections maintained by
the United States Government of such
information;
(III) the agreement by the
Organization to immediately notify the
United States Government of any
unauthorized disclosure of United
States-provided intelligence, and to
permit the full participation of United
States law enforcement personnel in the
investigation of such disclosure;
(IV) prohibitions on access to United
States-provided intelligence
information by nationals of countries
not otherwise eligible for the receipt
of such information;
(V) prohibitions on access to United
States-provided intelligence
information by the government of any
country designated by the Secretary of
State as a state supporter of
terrorism;
(VI) prohibitions on access to United
States-provided intelligence
information by any government not
eligible for the direct provision of
such information by the United States
through existing bilateral
intelligence-sharing agreements; and
(VII) other measures which shall
protect intelligence sources and
methods from unauthorized disclosure in
accordance with section 103(c)(5) of
the National Security Act of 1947 (50
U.S.C. 403-3(c)(5)).
(ii) Subparagraph (A) may be waived upon
written certification by the President to the
appropriate committees of Congress that
providing such information to the Organization,
or to any officials or employees thereof, is in
the vital national security interests of the
United States and that all possible measures
protecting such information have been taken,
except that such waiver must be made for each
instance such information is provided, or for
each such document provided.
(B) Periodic and special reports.--(i) The
President shall report periodically, but not
less frequently than quarterly, to the
Committee on Foreign Relations and the Select
Committee on Intelligence of the Senate and the
Committee on International Relations and the
Permanent Select Committee on Intelligence of
the House of Representatives on the types and
volume of intelligence provided to the
Organization and the purposes for which it was
provided during the period covered by the
report. The President shall also report to the
Select Committee on Intelligence of the Senate
and the Permanent Select Committee on
Intelligence of the House of Representatives
within 15 days after it has become known to the
United States Government regarding any
unauthorized disclosure of intelligence
provided by the United States to the
Organization.
(ii) The requirement for periodic reports
under the first sentence of subparagraph (A)
shall not apply to the provision of
intelligence that is provided only to, and for
the use of, appropriately-cleared United States
Government personnel serving with the
Organization.
(C) Delegation of duties.--The President may
not delegate or assign the duties of the
President under this paragraph.
(D) Relationship to existing law.--Nothing in
this paragraph may be construed to--
(i) impair or otherwise affect the
authority of the Director of Central
Intelligence to protect intelligence
sources and methods from unauthorized
disclosure pursuant to section
103(c)(5) of the National Security Act
of 1947(50 U.S.C. 403-3(c)(5)); or
(ii) supersede or otherwise affect
the provisions of title V of the
National Security Act of 1947 (50
U.S.C. 413 et seq.).
(8) Completion of the work of the preparatory
commission.--Prior to the deposit of the United States
instrument of ratification, the President shall certify
to the Congress that the Preparatory Commission for the
Organization has completed, to the satisfaction of the
United States, the formulation of detailed guidelines
and procedures for all outstanding issues identified as
``necessary preparations for the effective
implementation of the Convention * * * and for
preparing for the first session of the Conference of
States Parties * * *'' by the Executive Secretary of
the Preparatory Commission at its Thirteenth Session in
document PCXIII/6.
(9) Amendments to the convention.--(A) A United
States representative will be present at all Amendment
Conferences and will cast a vote, either affirmative or
negative, on all proposed amendments made at such
conferences.
(B) The President shall submit to the Senate for its
advice and consent to ratification under Article II,
Section 2, Clause 2 of the Constitution of the United
States any amendment to the Convention adopted by an
Amendment Conference.
(10) Plan for destruction of chemical weapons.--(A)
In accordance with the rights of the United States to
develop a plan of destruction under the Convention and
the requirements of Public Law 99145, the Secretary of
Defense shall proceed expeditiously with the
destruction of the existing stockpile of lethal unitary
chemical agents and munitions and shall complete such
destruction within the Convention-allowed timeframe and
prior to the elimination of the binary chemical agent
stockpile and binary munitions. Prior to initiating the
destruction of the final remaining 500 tons of binary
chemical agents and their associated munitions, and not
later than nine years after the date of entry into
force of the Convention, the President shall certify to
the Congress that all states possessing chemical
weapons have signed and ratified the Convention, and
that no state, other than a state which has declared
chemical weapons under the Convention and is
implementing a plan for their destruction pursuant to
the Convention, possesses chemical weapons. If the
President determines that a state possessing chemical
weapons has not signed and ratified the Convention, or
that a party to the Convention possesses nondeclared
chemical weapons, then the President shall--
(i) notify the Congress of his findings
within 30 days of having made such a
determination;
(ii) direct the Secretary of Defense to defer
for 5 years the destruction of the remaining
500 tons of the stockpile of binary agent and
transmit written notice to the Congress of any
such deferral within 30 days after the date on
which the notification under clause (i) is
made;
(iii) seek a Senate resolution of support of
continued adherence to the Convention,
notwithstanding the determination that states
possessing chemical weapons remain nonparties
to the Convention nine years after the
Convention's entry into force, or that a party
to the Convention possesses undeclared stocks
of chemical weapons; and
(iv) secure agreement from the Organization
that the destruction timeframe for the
remaining 500 tons of binary agent shall be
extended by five years, in accordance with the
provisions of the Convention.
(B) For purposes of this resolution, the term
``chemical weapons'' has the meaning given the term in
Article I(1) of the Convention.
(11) Russian elimination of chemical weapons.--Prior
to the deposit of the United States instrument of
ratification, the President shall certify to the
Congress that--
(A) Russia is making reasonable progress in
the implementation of the Agreement between the
United States of America and the Union of
Soviet Socialist Republics on Destruction and
Nonproduction of Chemical Weapons and on
Measures to Facilitate the Multilateral
Convention on Banning Chemical Weapons, signed
on June 1, 1990 (in this resolution referred to
as the ``1990 Bilateral Destruction
Agreement');
(B) the United States and Russia have
resolved, to the satisfaction of the United
States, outstanding compliance issues under the
Memorandum of Understanding Between the
Government of the United States of America and
the Government of the Union of Soviet Socialist
Republics Regarding a Bilateral Verification
Experiment and Data Exchange Related to
Prohibition on Chemical Weapons, signed at
Jackson Hole, Wyoming, on September 23, 1989,
also known as the ``1989 Wyoming Memorandum of
Understanding,'' and the 1990 Bilateral
Destruction Agreement;
(C) Russia has deposited the Russian
instrument of ratification for the Convention
and is in compliance with its obligations under
the Convention; and
(D) Russia is committed to forgoing any
chemical weapons capability, chemical weapons
modernization program, or any other activity
contrary to the object and purpose of the
Convention.
(12) Chemical weapons in countries other than
russia.--Prior to the deposit of the United States
instrument of ratification, the President, in
consultation with the Director of Central Intelligence,
shall certify to the Congress that countries which have
been determined to have offensive chemical weapons
programs, including Iran, Iraq, Syria, Libya, the
Democratic People's Republic of Korea, and all other
countries determined to be state sponsors of
international terrorism, have ratified or otherwise
acceded to the Convention.
(13) Criteria for united states assistance to
russia.--Notwithstanding any other provision of law,
United States assistance to Russia for the purposes of
facilitating the transport, storage, safeguarding, and
elimination of chemical weapons and their delivery
vehicles, for preventing the proliferation of chemical
weapons, chemical weapons components and technology,
and chemical weapons-related technology and expertise,
or for the planning, design, and construction of a
chemical weapons destruction facility, may not be
provided unless the President certifies to the
Congress, on an annual basis, that--
(A) the matters described in paragraph (11)
of this resolution are satisfied;
(B) Russia has fully and accurately declared,
pursuant to Article III of the Convention, all
information regarding its unitary and binary
chemical weapons, chemical weapons production
facilities, other facilities associated with
the development of chemical weapons, and riot
control agents; and
(C) Russia is in compliance with its
obligations under the Convention on the
Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on Their Destruction, done at
Washington, London, and Moscow on April 10,
1972 (commonly referred to as the ``Biological
Weapons Convention').
(14) Other documents.--(A) The documents described in
subparagraph (B) have the same force and effect as the
provisions of the Convention. The United States shall
regard any action inconsistent with an obligation under
those documents as equivalent under international law
to an action inconsistent with the Convention.
(B) The documents referred to in subparagraph (A)
are--
(i) the Resolution Establishing the
Preparatory Commission for the Organization for
the Prohibition of Chemical Weapons;
(ii) the Text on the Establishment of a
Preparatory Commission;
(iii) the Annex 1 on Privileges, Immunities
and Practical Arrangements in Connection With
the Hosting of the Preparatory Commission;
(iv) the Annex 2 on Privileges, Immunities
and Practical Arrangements to be Laid Down in
the Headquarters Agreement; and
(v) the Annex 3 on Information Submitted and
Commitments Undertaken by the Netherlands and
By the City of The Hague.
(15) The austrialia group.--Prior to the deposit of
the United States instrument of ratification, the
President shall--
(A) certify to the Congress that the
international export control measures afforded
by the informal forum of States known as the
``Australia Group'' are compatible with the
purpose and objectives of the Convention and
shall be maintained indefinitely, and
(B) certify annually to the Congress that--
(i) the Australia Group continues to
maintain an equivalent or more
comprehensive level of control over the
export of toxic chemicals and their
precursors, dual-use processing
equipment, human, animal, and plant
pathogens and toxins with potential
biological weapons application, and
dual-use biological equipment, as that
afforded by the Australia Group as of
the date of ratification of the
Convention by the United States, and
(ii) the Australia Group remains a
viable mechanism for curtailing the
spread of chemical and biological
weapons.
(16) Negative security assurances.--(A) In
forswearing the possession of chemical weapons
retaliatory capability under the Convention, the United
States understands that deterrence of attack by
chemical weapons requires a reevaluation of the
negative security assurances extended to non-nuclear-
weapon states.
(B) Accordingly, prior to the deposit of the United
States instrument of ratification, the President shall
submit to the Congress a report setting forth the
findings of a detailed review of United States policy
on negative security assurances as a deterrence
strategy, including a determination of the appropriate
nuclear and conventional responses to the use of
chemical or biological weapons against the United
States military, United States citizens, allies, and
third parties.
(C) For purposes of this paragraph--
(i) the term ``negative security assurances''
means the assurances provided by the United
States to non-nuclear-weapon states to forswear
the use of certain weapons unless the United
States is attacked by that non-nuclear weapon
state in alliance with a nuclear weapon state;
and
(ii) the term ``non-nuclear-weapon states''
means states that are not nuclear-weapon states
(as defined in Article IX(3) of the Treaty on
the Non-Proliferation of Nuclear Weapons (21
UST 492493).
(17) Protection of advanced biotechnology.--Prior to
the deposit of the United States instrument of
ratification, and on January 1 of every year
thereafter, the President shall certify to the
Committee on Foreign Relations and the Speaker of the
House of Representatives that chemical, biotechnology,
and pharmaceutical firms in the United States are not
being adversely affected by the limitations of the
Convention on access to, and production of, those
chemicals and toxins listed in Schedule 1 contained in
the Annex on Chemicals of the Convention.
(18) Monitoriing and verification of compliance.--(A)
The Senate declares that--
(i) the Convention is in the interests of the
United States only if all parties to the
Convention are in strict compliance with the
terms of the Convention as submitted to the
Senate for its advice and consent to
ratification, such compliance being measured by
performance and not by efforts, intentions, or
commitments to comply; and
(ii) the Senate expects all parties to the
Convention to be in strict compliance with
their obligations under the terms of the
Convention, as submitted to the Senate for its
advice and consent to ratification;
(B) Prior to the deposit of the United States
instrument of ratification, and on January 1 of every
year thereafter, the President shall certify to the
Committee on Foreign Relations of the Senate and the
Speaker of the House that the intelligence community
(as defined in section 3(4) of the National Security
Act of 1947) has the capability to monitor with a high
degree of confidence the compliance of all parties to
the Convention.
(C) Given its concern about the low level of
confidence of the intelligence community in the
verifiability of compliance with the Convention, the
President (or his designee) shall offer regular
briefings, not less than four times a year, to the
Committee on Foreign Relations of the Senate and the
Committee on International Relations of the House of
Representatives on compliance issues related to the
Convention. Such briefings shall include a description
of all United States efforts in bilateral and
multilateral diplomatic channels and forums to resolve
compliance issues and shall include a complete
description of--
(i) any compliance issues the United States
plans to raise at meetings of the Organization,
in advance of such meetings;
(ii) any compliance issues raised at meetings
of the Organization, within 30 days of each
such meeting;
(iii) any determination by the President that
a party is in noncompliance with or is
otherwise acting in a manner inconsistent with
the object or purpose of the Convention, within
30 days of such a determination.
(D) The Secretary of State shall submit annually on
January 1 to the Committee on Foreign Relations of the
Senate and the Committee on International Relations of
the House of Representatives a full and complete
classified and unclassified report setting forth--
(i) a certification of those countries
determined to be in compliance with the
Convention, on a country-by-country basis;
(ii) for those countries not certified
pursuant to clause (i), an identification and
assessment of all compliance issues arising
with regard to the adherence of the country to
its obligations under the Convention;
(iii) the steps the United States has taken
--
(I) to initiate challenge inspections
of the noncompliant party with the
objective of demonstrating to the
international community the act of
noncompliance;
(II) to call attention publicly to
the activity in question; and
(III) to seek on an urgent basis a
meeting at the highest diplomatic level
with the noncompliant party with the
objective of bringing the noncompliant
party into compliance;
(iv) a determination of the military
significance and broader security risks arising
from any compliance issue identified pursuant
to clause (ii); and
(v) a detailed assessment of the responses of
the noncompliant party in question to actions
undertaken by the United States pursuant to
clause (iii).
(E) Prior to the deposit of the United States
instrument of ratification, and on January 1 of every
year thereafter, the Director of Central Intelligence
shall submit to the Committees on Foreign Relations,
Armed Services, and the Select Committee on
Intelligence of the Senate and to the Committees on
International Relations, National Security, and
Permanent Select Committee of the House of
Representatives, a full and complete classified and
unclassified report regarding--
(i) the status of chemical weapons
development, production, stockpiling, and use,
within the meanings of the Convention, on a
country-by-country basis;
(ii) the extent of trade in chemicals capable
of serving as a chemical weapon, or as a
precursor for the production of chemical
weapons, on a country-by-country basis;
(iii) the monitoring responsibilities,
practices, and strategies of the intelligence
community and a determination of the level of
confidence of the intelligence community (as
defined in section 3(4) of the National
Security Act of 1947) with respect to each
specific monitoring task undertaken, including
an assessment by the intelligence community of
the national aggregate data provided by parties
to the Organization, on a country-by-country
basis;
(iv) the identification of chemical weapons
development, production, stockpiling, or use,
within the meanings of the Convention, by
subnational groups, including terrorist and
paramilitary organizations;
(v) a detailed and specific identification of
all United States resources devoted to
monitoring the Convention, including
information on all expenditures associated with
the monitoring of the Convention; and
(vi) an identification of the priorities of
the executive branch of Government for the
development of new resources relating to
detection and monitoring capabilities with
respect to chemical and biological weapons.
(19) Preservation of robust chemical defenses.--(A)
The Senate declares that--
(i) ratification of the Convention of the
United States in no way diminishes the
necessity for preserving and further developing
robust chemical and biological defenses; and
(ii) the United States Armed Forces are
inadequately trained for chemical and
biological defenses, and that this lack of
readiness stems from a de-emphasis of chemical
and biological defenses within the executive
branch of Government and the United States
Armed Forces.
(B) Notwithstanding any provision of law, the
Secretary of Defense shall assign responsibility for
overall coordination and integration of the chemical
and biological warfare defense program and the chemical
and biological medical defense program to a single
office within the Office of the Secretary of Defense.
(C) The Secretary of Defense shall designate the Army
as the executive agent for the Department of Defense to
coordinate and integrate research, development, test,
evaluation, and acquisition, requirements of the
military departments for chemical and biological
warfare defense programs of the Department of Defense,
and shall take those actions necessary to ensure that
the United States Army Chemical School remains under
the command of a general officer of the United States
Army.
(D) Given its concerns about the present state of
chemical and biological defense readiness and training,
it is the sense of the Senate that--
(i) the transfer, consolidation, and
reorganization of the U.S. Army Chemical School
from Fort McClellan to Fort Leonard Wood, or
any other location, should not disrupt or
diminish the training and readiness of the
United States Armed Forces to fight in a
chemical-biological warfare environment;
(ii) the Chemical School to be relocated at
Fort Leonard Wood, or any other location,
should have the same level of smoke training
capability as that previously available at Fort
McClellan; and
(iii) the Chemical School, after being
relocated at Fort Leonard Wood, or any other
location, should possess a Chemical
Decontamination Training Facility, established
for live agent training, which is capable of
the same level of operations as that permitted
at Fort McClellan on the date of the deposit of
the United States instrument of ratification.
(E) Thirty days prior to the deposit of the United
States instrument of ratification, and on January 1
every year thereafter, the President shall submit a
report to the Committees on Foreign Relations, Armed
Services, and Appropriations of the Senate and the
Committees on International Relations, National
Security, and Appropriations of the House of
Representatives on previous, current, and planned
chemical and biological weapons defense activities.
Each report shall include the following information for
each of the previous three fiscal years and for the
next three fiscal years:
(i) An identification of priorities of the
executive branch of Government in the
development of both active and passive chemical
and biological defenses.
(ii) A detailed summary of all budget
activities associated with the research,
development, testing, and evaluation of
chemical and biological defense programs.
(iii) A detailed summary of expenditures on
research, development, testing, and evaluation,
and procurement of chemical and biological
defenses by fiscal years defense programs,
department, and agency.
(iv) A detailed assessment of current and
projected vaccine production capabilities and
vaccine stocks, including progress in
researching and developing a multibiological
agent vaccine.
(v) A detailed assessment of procedures and
capabilities necessary to protect and
decontaminate infrastructure to reinforce
United States power-projection forces,
including progress in developing a nonaqueous
chemical decontamination capability.
(vi) The progress in developing long-range
standoff detection and identification
capabilities and other battlefield surveillance
capabilities for biological and chemical
weapons, including progress on developing a
multi-chemical agent detector, unmanned aerial
vehicles, and unmanned ground sensors.
(vii) An assessment of the training and
readiness of the United States Armed Forces to
operate in a chemically or biologically
contaminated environment and actions taken to
sustain training and readiness.
(viii) The progress in resolving issues
relating to the protection of United States
population centers from chemical and biological
attack, including plans for inoculation of
populations, emergency response, and progress
made in developing and deploying effective
cruise missile defenses and a national
ballistic missile defense.
(ix) The progress in incorporating chemical
and biological considerations into training and
planning simulations, models, and wargames and
conclusions drawn from those exercises.
(x) The progress in developing and
implementing joint operational biological
defense and chemical defense doctrines.
(20) Noncompliance.--If the President determines that
a party to the Convention is acting in a manner
inconsistent with the object or purpose of the
Convention, is maintaining a chemical weapons
capability, or is in violation of the Convention in any
other manner so as to threaten the national security
interests of the United States, then the President
shall--
(A) consult with, and promptly submit to, the
Senate a report detailing the effect of such
actions;
(B) seek on an urgent basis a challenge
inspection of the facilities of the
noncompliant party in accordance with the
provisions of the Convention with the objective
of demonstrating to the international community
the act of noncompliance;
(C) seek on an urgent basis a meeting at the
highest diplomatic level with the noncompliant
party with the objective of bringing the
noncompliant party into compliance;
(D) implement prohibitions and sanctions
against the noncompliant party as required by
law;
(E) seek on an urgent basis within the
Security Council of the United Nations a
multilateral imposition of sanctions against
the noncompliant party for the purposes of
bringing the noncompliant party into
compliance; and
(F) in the event that noncompliance persists
for a period not longer than one year, promptly
seek a Senate resolution of support of
continued adherence to the Convention,
notwithstanding the changed circumstances
affecting the object and purpose of the
Convention.
(c) Understandings.--The advice and consent of the Senate
to the ratification of the Convention is subject to the
following understandings, which shall be included in the United
States instrument of ratification:
(1) Primacy of the united states constitution.--
Nothing in the Convention requires or authorizes
legislation, or other action, by the United States
prohibited by the Constitution of the United States, as
interpreted by the United States.
(2) Financing russian implementation.--The United
States understands that in order to be assured of the
Russian commitment to a reduction in chemical weapons
stockpiles, Russia must maintain a substantial stake in
financing the implementation of both the 1990 Bilateral
Destruction Agreement, and the Convention. The deposit
by Russia of its instrument of ratification for the
Convention shall not be contingent upon the United
States providing financial guarantees to pay for
implementation of commitments by Russia under the 1990
Bilateral Destruction Agreement or the Convention.
(3) Domestic export controls.--Nothing in the
Convention obligates the United States to accept any
modification, change in scope, or reduction in its
national export controls. The United States understands
that maintenance of domestic restrictions on trade in
chemicals and chemical production technology is
compatible with the object and purpose of the
Convention and solely within the sovereign jurisdiction
of the United States.
(4) Riot control agents.--(A) Nothing in the
Convention diminishes, abridges, or alters the right of
the United States to use riot control agents--
(i) under all circumstances not involving
international armed conflict; and
(ii) in defensive military modes to save
lives in international armed conflicts, as
provided for in Executive Order No. 11850 of
April 9, 1975.
(B) The United States understands that the use of
riot control agents under subparagraph (A)(i) includes
the use of such agents in--
(i) peacekeeping operations;
(ii) humanitarian or disaster relief
operations;
(iii) non-combatant evacuation operations;
(iv) counter-terrorist operations and the
rescue of hostages; and
(v) law enforcement operations and other
internal conflicts.
(C) The United States understands that the use of
riot control agents under subparagraph (A)(ii) may
include the use of such agents--
(i) in areas under direct and distinct United
States military control, including the use of
such agents for the purposes of controlling
rioting or escaping enemy prisoners of war;
(ii) to protect personnel or material from
civil disturbances, terrorists, and
paramilitary organizations;
(iii) to minimize casualties during rescue
missions of downed air crews and passengers,
prisoners of war, or hostages; and
(iv) in support of base defense, rear area
operations, non-combatant evacuation
operations, and operations to protect or
recover nuclear weapons.
(D) The United States further understands that
herbicides may be used, under regulations applicable to
their domestic use, for control of vegetation within
United States bases and installations or around their
immediate defensive perimeters.
(E) The Secretary of Defense shall take all necessary
measures, and prescribe the rules and regulations he
deems necessary, to ensure that the national policy of
this paragraph shall be observed by the Armed Forces of
the United States.
(F) For purposes of this paragraph, the term ``riot
control agent'' has the meaning given the term in
Article II(7) of the Convention.
(5) Protection of confidential information.--The
United States understands that the limitation on
liability in paragraph (22) of the Confidentiality
Annex does not apply to the unauthorized disclosure of
national aggregate data and is subject to the enactment
of implementing legislation by the United States.
(d) Declarations.--The advice and consent of the Senate to
ratification of the Convention is subject to the following
declarations, which express the intent of the Senate:
(1) Further arms reduction obligations.--The Senate
declares its intention to consider for approval
international agreements that would obligate the United
States to reduce or limit the Armed Forces or armaments
of the United States in a militarily significant manner
only pursuant to the treaty power as set forth in
Article II, section 2, clause 2 of the Constitution.
(2) Treaty interpretation.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification with
respect to the INF Treaty. For purposes of this
declaration, the term ``INF Treaty'' refers to the
Treaty Between the United States of America and the
Union of Soviet Socialist Republics on the Elimination
of Their Intermediate-Range and Shorter Range Missiles,
together with the related memorandum of understanding
and protocols, approved by the Senate on May 27, 1988.
------
Hon. Trent Lott, Majority Leader,
U.S. Senate, Washington, DC.
Dear Senator Lott: As you know, the Senate is currently
scheduled to take final action on the Chemical Weapons
Convention (CWC) on or before September 14. This treaty has
been presented as a global, effective and verifiable ban on
chemical weapons. As individuals with considerable experience
in national security matters, we would all support such a ban.
We have, however, concluded that the present Convention is
seriously deficient on each of these scores, among others.
The CWC is not global since many dangerous nations (for
example, Iran, Syria, North Korea, and Libya), have not agreed
to join the treaty regime. Russia is among those who have
signed the Convention, but is unlikely to ratify--especially
without a commitment of billions in U.S. aid to pay for the
destruction of Russia's vast arsenal. Even then, given our
experience with the Kremlin's treaty violations and its
repeated refusal to implement the 1990 Bilateral Destruction
Agreement on chemical weapons, future CWC violations must be
expected.
The CWC is not effective because it does not ban or control
possession of all chemicals that could be used for lethal
weapons purposes. For example, it does not prohibit two
chemical agents that were employed with deadly effect in World
War I--phosgene and hydrogen cyanide. The reason speaks volumes
about this treaty's impractical nature; they are too widely
used for commercial purposes to be banned.
The CWC is not verifiable as the U.S. intelligence
community has repeatedly acknowledged in congressional
testimony. Authoritarian regimes can be confident that their
violations will be undetectable. Now, some argue that the
Treaty's intrusive inspections regime will help us know more
than we would otherwise. The relevant test, however, is whether
any additional information thus gleaned will translate into
convincing evidence of cheating and result in the collective
imposition of sanctions or other enforcement measures. In
practice, this test is unlikely to be satisfied since
governments tend to look the other way at evidence of non-
compliance rather than jeopardize a treaty regime.
What the CWC will do, however, is quite troubling: It will
create a massive new, UN-style international inspection
bureaucracy (which will help the total cost of this treaty to
U.S. taxpayers amount to as much as $200 million per year). It
will jeopardize U.S. citizens' constitutional rights by
requiring the U.S. Government to permit searches without either
warrants or probable cause. It will impose a costly and complex
regulatory burden on U.S. industry. As many as 8,000 companies
across the country may be subjected to new reporting
requirements entailing uncompensated annual costs of between
thousands to hundreds-of-thousands of dollars per year to
comply. Most of these American companies have no idea that they
will be affected. And perhaps worst of all, the CWC will
undermine the standard of verifiability that has been a key
national security principle for the United States.
Under these circumstances, the national security benefits
of the Chemical Weapons Convention clearly do not outweigh its
considerable costs. Consequently, we respectfully urge you to
reject ratification of the CWC unless and until it is made
genuinely global, effective and verifiable.
William P. Clark.
Cap Weinberger.
Dick Cheney.
Jean Kirkpatrick.
Edwin Meese III.
signatories on letter to senator trent lott regarding the chemical
weapons convention
Signatures on letter and other former Cabinet Members:
Richard B. Cheney, former Secretary of Defense.
William P. Clark, former National Security Advisor to the
President.
Alexander M. Haig, Jr., former Secretary of State (signed
on September 10).
John S. Herrington, former Secretary of Energy (signed on
September 9).
Jean J. Kirkpatrick, former U.S. Ambassador to the United
Nations.
Edwin Meese III, former U.S. Attorney General.
Donald Rumsfeld, former Secretary of Defense (signed on
September 10).
Casper Weinberger, former Secretary of Defense.
Additional Signatories (retired military):
General John W. Foss, U.S. Army (Retired), former
Commanding General, Training and Doctrine Command.
Vice Admiral William Houser, U.S. Navy (Retired), former
Deputy Chief of Naval Operations for Aviation.
General P.X. Kelley, U.S. Marine Corps (Retired), former
Commandant of U.S. Marine Corps (signed on September 9).
Lieutenant General Thomas Kelly, U.S. Army (Retired),
former Director for Operations, Joint Chiefs of Staff (signed
on September 9).
Admiral Wesley McDonald, U.S. Navy (Retired), former
Supreme Allied Commander, Atlantic.
Admiral Kinnaird McKee, U.S. Navy (Retired), former
Director, Naval Nuclear Propulsion.
General Merrill A. McPeak, U.S. Air Force (Retired), former
Chief of Staff, U.S. Air Force.
Lieutenant General T.H. Miller, U.S. Marine Corps
(Retired), former Fleet Marine Force Commander/Head, Marine
Aviation.
General John L. Piotrowski, U.S. Air Force (Retired),
former Member of the Joint Chiefs of Staff as Vice Chief, U.S.
Air Force.
General Bernard Schriever, U.S. Air Force (Retired), former
Commander, Air Research and Development and Air Force Systems
Command.
Vice Admiral Jerry Unruh, U.S. Navy (Retired), former
Commander 3rd Fleet (signed on September 10).
Lieutenant General James Williams, U.S. Army (Retired),
former Director, Defense Intelligence Agency.
Additional Signatories (non-military):
Elliott Abrams, former Assistant Secretary of State for
Latin American Affairs (signed on September 9).
Mark Albrecht, former Executive Secretary, National Space
Council.
Kathleen Bailey, former Assistant Director of the Arms
Control and Disarmament Agency.
Robert B. Barker, former Assistant to the Secretary of
Defense for Nuclear and Chemical Weapon Matters.
Angelo Codevilla, former Senior Fellow, Hoover Institute
(signed on September 10).
Henry Cooper, former Director, Strategic Defense Initiative
Organization.
J.D. Crouch, former Principal Deputy Assistant Secretary of
Defense.
Midge Decter, former President, Committee for the Free
World.
Kenneth deGraffenreid, former Senior Director of
Intelligence Programs, National Security Council.
Diane Denman, former Co-Chair, U.S. Peace Corps Advisory
Council.
Elaine Donnelly, former Commissioner, Presidential
Commission on the Assignment of Women in the Armed Services.
David M. Evans, former Senior Advisor to the Congressional
Commission on Security and Cooperation in Europe.
Charles Fairbanks, former Deputy Assistant Secretary of
State.
Douglas J. Feith, former Deputy Assistant Secretary of
Defense.
Rand H. Fishbein, former Professional Staff member, Senate
Defense Appropriations Subcommittee.
Frank J. Gaffney, Jr., former Acting Assistant Secretary of
Defense.
William R. Graham, former Science Advisor to the President.
E.C. Grayson, former Principal Deputy Assistant Secretary
of the Navy.
James T. Hackett, former Acting Director of the Arms
Control and Disarmament Agency.
Stefan Halper, former Deputy Assistant Secretary of State
(signed on September 10).
Thomas N. Harvey, former National Space Council Staff
Officer (signed on September 9).
Charles A. Hamilton, former Deputy Director, Strategic
Trade Policy, U.S. Department of Defense.
Amoretta M. Hoeber, former Deputy Under Secretary, U.S.
Army.
Charles Horner, former Deputy Assistant Secretary of State
for Science and Technology.
Fred Ikle, former Under Secretary of Defense for Policy.
Sven F. Kraemer, former Director for Arms Control, National
Security Council.
Charles M. Kupperman, former Special Assistant to the
President.
John Lehman, former Secretary of the Navy.
John Lenczowski, former Director for Soviet Affairs,
National Security Council.
Bruce Merrifield, former Assistant Secretary for Technology
Policy, Department of Commerce.
Taffy Gould McCallum, columnist and free-lance writer.
James C. McCrery, former senior member of the Intelligence
Community and Arms Control Negotiator (Standing Consultative
Committee).
J. William Middendorf II, former Secretary of the Navy
(signed on September 10).
Laurie Mylroie, best-selling author and Mideast expert
specializing in Iraqi affairs.
Richard Perle, former Assistant Secretary of Defense.
Norman Podhoretz, former editor, Commentary Magazine.
Roger W. Robinson, Jr., former Chief Economist, National
Security Council.
Peter W. Rodman, former Deputy Assistant to the President
for National Security Affairs and former Director of the Policy
Planning Staff, Department of State.
Edward Rowny, former Advisor to the President and Secretary
of State for Arms Control.
Carl M. Smith, former Staff Director, Senate Armed Services
Committee.
Jacqueline Tillman, former Staff member, National Security
Council.
Michelle Van Cleave, former Associate Director, Office of
Science and Technology.
William Van Cleave, former Senior Defense Advisor and
Defense Policy Coordinator to the President.
Malcolm Wallop, former United States Senator.
Deborah L. Wince-Smith, former Assistant Secretary for
Technology Policy, Department of Commerce.
Curtin Winsor, Jr., former U.S, Ambassador to Costa Rica.
Dov S. Zakheim, former Deputy Under Secretary of Defense.
------
Annandale, VA, September 9, 1996.
Hon. Trent Lott,
Majority Leader,
U.S. Senate, Washington, DC.
Dear Senator Lott: As you weigh the benefits and costs of
the Chemical Weapons Convention (CWC) I would like to offer
some insight gained during my 28 years at every level of
Military Intelligence and my subsequent ten years in
competitive intelligence and counterintelligence for some of
the premier companies in this country. The need for
international mechanisms to control or eliminate the potential
use of chemical weapons cannot be denied but the mechanisms
must not be adopted in haste or under pressure. I ask only that
you delay consideration long enough for an informed debate to
take place, and I stress informed.
My foremost concern is that the CWC adds little to the
ability of this country, or any other for that matter, to be
assured that chemical weapons are not being manufactured by
specific nations. Experience in Iraq has amply demonstrated the
ease with which inspections can be thwarted and sanctions can
be thwarted and sanctions evaded. With all of the effort put
into the inspection program the United States is still unable
to say whether Iraq retains a capability to manufacture
chemical weapons. We are unable to state publicly the chemical
weapons production capabilities of nations such as Libya, Iran,
Syria, China or Korea. Many nations posses a production
capability of are thought to possess such capabilities. Nations
that are likely to produce chemical weapons for use by
terrorists or for limited battlefield deployment can produce
sufficient quantities in laboratories small enough that they
can temporarily closed or relocated to avoid inspections. The
existing treaty on chemical weapons is already so weak on this
point that no effort has been made to enforce it and provisions
of the CWC are even weaker. Let's discuss objectively what
information is required to verify such a treaty, the
capabilities required to collect the information, the cost of
doing so, and the likelihood of making such collection.
Furthermore, the opportunity for unfettered access to
virtually every industrial facility in this country, not merely
the pharmaceutical and chemical plants, would make some foreign
intelligence organizations very happy, even gleeful. It is
likely to cause the counterintelligence sections of the FBI and
the Defense Investigative Service major problems for the
foreseeable future. The inspection procedures which apply to
ALL industries constitute unprecedented access to our
manufacturing base, not just those though likely to be engaged
in proscribed activities! My experience in protecting patents
and intellectual property over the past ten years leads me to
conclude that there is the potential for the loss of untold
billions of dollars in trade secrets which can be used to gain
competitive advantage, to shorten R&D cycles, and to steal U.S.
market share. To allow the invasion of private property without
probable cause or a search warrant could undermine every
industrial security standard established under government
regulations or by private firms seeking to protect industrial
processes or other proprietary information. Under the
inspection and reporting practices specified in the CWC I see
no prohibition against the exchanging of lucrative information
among the nations conducting a given inspection. This country,
for valid reasons, does not permit its intelligence agencies to
conduct industrial espionage but we may be the only nation in
the world to hold to such a standard.
The CWC constitutes a significant departure from the way
this country conducts business and the way our society has
elected to protect its very fabric. It seems to me that the CWC
has been put together as a placebo measure to make people feel
good but without considering the overall long term impact on
our industry, our society and our legal system. The Congress
bears the responsibility of assuring our citizenry that the
advantages and disadvantages have been carefully considered and
balanced.
We look to you to insure that those safeguards are built
into the process.
Sincerely,
James A. Williams,
LTG U.S. Army (Ret.).
------
Air Force Association,
Arlington, VA, September 10, 1996.
Hon. James Inhofe,
U.S. Senate,
Washington, DC.
Dear Senator Inhofe: The Air Force Association is deeply
concerned that Chemical Weapons Convention (CWC), due for
consideration by the Senate this week, will unreasonably
restrict military rescue efforts.
The Administration interprets the CWC to ban the use of
riot control agents in armed conflict, even in a situation
where combatants and noncombatants are intermingled. This can
happen when our forces attempt to rescue downed pilots or
hostages while engaged in operations during such a conflict.
Our Association has three concerns. The first is that this
is an unreasonable interpretation of a treaty intended to
eliminate truly heinous weapons of war. Banning the use of non-
lethal riot control agents could put the military in the
unconscionable position of having to abandon the rescue of a
downed airman, or using lethal means and killing noncombatants
in the effort. A treaty that does this by design begs for
appropriate revision. If it results from misinterpretation, the
convention's restrictions on riot control agents need to be
revisited and clarified.
AFA's second concern is that if the Senate provides its
advice and consent to the CWC with the present interpretation
of restrictions on riot control agents, there will likely be an
unacceptable gap between the time that these agents are banned
and the availability of new non-lethal technologies. To our
knowledge, no non-lethal technologies that could substitute for
these agents are mature enough to be fielded in the near term.
While we understand that the Administration would accelerate
development efforts if the Senate approves the CWC, no good
alternatives are apparently available during their development
and acquisition.
The Association's final concern relates to the nature of
the follow-on technologies. Approving the CWC before we can be
confident that acceptable alternatives can be developed and
fielded appears to discount the lives of military men and women
as they put themselves in harm's way for the safety and
security of others.
The Air Force Association urges the Senate to assure that
the U.S. military has access to all the necessary tools, to
include certainly those that are non-lethal, in its efforts to
protect innocent lives, American citizens, and our service
members in very dangerous combat situations.
Sincerely,
R.E. Smith, President.
------
NFIB,
Washington, DC, September 9, 1996.
Hon. Jesse Helms,
U.S. Senate,
Washington, DC.
Dear Senator Helms: On behalf of the more than 600,000
members of the National Federation of Independent Business
(NFIB), I want to express serious concern regarding the
regulatory requirements and burdens that would be placed on
small businesses who ``produce, process, consume, export or
import'' certain regulated chemicals with ratification of the
Chemical Weapons Convention Treaty (CWC) and its implementing
legislation.
This Congress has begun to address the serious problems of
paperwork burdens and red tape which are strangling small
businesses in this country. The passage of the Paperwork
Reduction Act and the Small Business Regulatory Enforcement
Fairness Act were positive first steps in reducing the
excessive regulatory burden which consistently ranks in the top
five problems small businesses face in NFIB surveys.
The CWC reverses the trend of reducing the growing
regulatory burden on small business. According to the
Congressional Office of Technology inspections of businesses
required under CWC will cost small business $10,000-$20,000.
The typical small business owner takes home only $40,000 per
year. The Department of Commerce has estimated that a business
will spend from 2.5-9 hours on paperwork for each chemical used
depending on its classification.
There is a great deal of disagreement on the number of
businesses which would be affected by the CWC. Numbers have
ranged from 3,000 to 10,000. The regulatory burden of the CWC
will hit small business harder than big business. A 1995 Small
Business Administration study stated that while small business
employs 53 percent of the workforce, they bear 67 percent of
business' total regulatory expenses. Even if the number of
small businesses in the initial list of affected companies is
limited to a specific list, the fact that additional businesses
might be regulated by CWC without approval by the U.S. Congress
will leave small business powerless to have any input as it
does under the U.S. regulatory system. For the first time,
small businesses would be subject to a foreign entity
inspecting their business.
The CWC will continue to bury small businesses in paperwork
and regulations. Therefore, NFIB urges your serious
consideration of the affect of this Treaty on the small
businesses in this country.
Sincerely,
Dan Danner,
Vice President, Federal Governmental Relations.
------
U.S. Business and Industrial Council,
Washington, DC, August 8, 1996.
Dear Senator: On behalf of the 1,000 member companies of
the United States Business and Industrial Council (USBIC). I
strongly urge you to oppose ratification of the Chemical
Weapons Convention (CWC). The Senate is expected to vote on
ratification this September.
If ratified by the Senate, the CWC will create numerous
problems for small and medium-sized chemical manufacturers and
other non-related industries that process chemicals as part of
their manufacturing operations, included may be autos, auto
parts, brewers and distillers, electronics, food processing,
pharmaceuticals, paint and tire producers, and a host of other
manufacturing industries.
Abroad, CWC inspections will not substantially reduce the
proliferation of chemical weapons around the globe. Russia,
with its huge stockpile of chemical weapons and massive
production capability, has not ratified the CWC. also the
world's most notorious terrorist nations, Iran, Syria, North
Korea, and Libya, refuse to ratify.
At home, CWC represents a major infringement of U.S.
sovereignty and the proprietary rights of manufacturers. First,
the CWC empowers a U.N.-style agency to conduct detailed
inspections of facilities on both regular and surprise basis.
They need no justification of suspected illegal activity or
even a search warrant. These inspections could cost individual
companies anywhere from $10,000 to $500,000--a substantial
unfunded mandate. And, CWC inspections could require up to 84
hours to complete.
Second, as written, the CWC effectively authorizes
industrial espionage. The CWC offers no protections for company
formulas and other trade secrets; they must be handed over if
inspected. Nothing would prevent other unscrupulous countries
such as France and China from placing intelligence officers on
the inspection team.
Finally, the CWC will cost American business millions.
Companies and the American taxpayers will pay $50 to $200
million for the privilege of handing over industrial secrets to
competitors while not preventing chemical warfare or terrorism.
Clearly, overwhelming evidence demonstrates that the CWC
will be disastrous for the United States. Please oppose
ratification of the CWC this September.
Sincerely,
Kevin L. Kearns,
President.
Chemical Weapons Convention and Small Business
(By Raymond J. Keating, Chief Economist, Small Business Survival
Committee)
The Chemical Weapons Convention (CWC)--a treaty banning the
production and stockpiling of chemical weapons--will be voted
on in the U.S. Senate by September 14. The CWC is riddled with
problems that should concern all Americans.
Defense and foreign policy experts have raised serious
questions about the CWC. They see it as non-verifiable and non-
enforceable, and not serving U.S. national interests. Indeed,
risks may increase as the good guys sign on to the ban and lose
any deterrence factor, while rogue states continue production
and stockpiling of chemical weapons. Former Reagan Defense
Department officials Douglas Feith and Frank Gaffney Jr. wrote
in the May 5, 1994 New Republic: ``The trouble is the CWC is a
bad treaty--one that will likely increase the risk of chemical
warfare around the world.''
In addition, the CWC would raise regulatory costs on
already over-regulated U.S. businesses. In particular, the CWC
would inflict the following on U.S. entrepreneurs and
businesses:
For the first time, U.S. private industry would be subject
to foreign inspection as a result of a treaty. Inspectors would
come from a new international agency in the Hague, Netherlands.
Businesses must prove to the U.S. government and
international inspectors that they are not producing or
stockpiling chemical weapons, with noncompliance fines reaching
as high as $50,000 per incident. Forms would have to be filed
on chemical types each year and changes in a process using
certain chemicals would have to be reported five days in
advance. Noncompliance could result in a $5,000 fine. And of
course, with government bureaucrats issuing fines, the threat
that fines shift from a means of deterrence or punishment to a
source of revenues always looms.
Firms would be open to a real threat of international
industrial espionage. The loss of proprietary information would
threaten international competitiveness. The treaties
protections are frivolous, and any court challenge likely would
come after the horse left the barn.
U.S. firms producing, processing, or consuming a scheduled
chemical will carry a paperwork/declaration burden. The U.S.
Department of Commerce estimated that it will take companies 9
hours to fill out paperwork for every Schedule 1 chemical, 7.2
hours for Schedule 2 chemicals, 2.5 hours for Schedule 3
chemicals, and 5.3 hours for each Discrete Organic Chemical.
Estimates range from 2,000 to more than 10,000 U.S. companies
that will be forced to bear these paperwork burdens.
Congress's Office of Technology Assessment estimated that
inspections will cost U.S. firms anywhere from $10,000 to
$500,000 per visit.
Smaller businesses will be hit hardest by increased
regulatory burdens. Interestingly, the Chemical Manufacturers
Association (CMA) supports ratification of the CWC and told the
Senate Foreign Relations Committee that the new regulations
would not be a burden (see Investor's Business Daily, July 16,
1996). But the CMA is a group of generally large chemical
manufacturers, and reportedly more than 60 percent of the
facilities likely affected by the CWC are not CMA members.
Large companies possess far greater resources and experience in
dealing with regulators of all kinds. Indeed, new regulatory
burdens can perversely give large firms a competitive edge over
small companies due to these resource and experience factors.
As economist Thomas Hopkins has shown, the per employee cost of
federal regulation runs almost 50 percent higher for firms with
fewer than 500 employees vs. companies with more than 500
employees--$5,400 per employee vs. $3,000 per employee,
respectively.
Chemical companies would not be the only types of
businesses subject to CWC regulations. Firms in the food
processing, pharmaceutical, paint, petroleum, biotech,
electronics, textiles, fertilizers, rubber, brewing, and
distilling industries would be impacted as well.
U.S. taxpayers--individuals and businesses--ultimately will
bear the governmental cost of the CWC. Estimates place the
annual U.S. cost in excess of $200 million over a 15-year
period, with the U.S. paying 25 percent of the CWC's cost and
implementation. The total cost to business can only be guessed
at, possibly running into the billions of dollars.
Significant legal questions arise for U.S. businesses as
well. Distinct possibilities exist that rights of due process
could be violated in relation to warrantless searches and
personnel being compelled to answer questions, and provide
information and access; and a ``takings'' could occur when
government reveals information harming a business.
The Chemical Weapons Convention is a deeply flawed treaty
that will do nothing to enhance and may indeed weaken U.S.
national security, while imposing new regulatory burdens on
U.S. businesses. The Chemical Weapons Convention should be
rejected by the U.S. Senate.
------
U.S. Senate,
Office of the Majority Leader,
Washington, DC, September 6, 1996.
President William Jefferson Clinton,
The White House,
Washington, DC.
Dear Mr. President: I am writing to ask your cooperation
and support for Senate efforts to obtain information and
documents directly relevant to our consideration of the
Chemical Weapons Convention.
As you know, the Senate is currently scheduled to consider
the Convention on or before September 14, 1996 under an
unanimous consent agreement reached on June 28, 1996.
Immediately prior to the Senate agreement on the Convention, I
stated, ``With respect to the Chemical Weapons Convention, the
Majority Leader and the Democratic Leader will make every
effort to obtain from the administration such facts and
documents as requested by the Chairman and ranking member of
the Foreign Relations Committee, in order to pursue its work
and hearings needed to develop a complete record for the Senate
* * ''
I regret to inform you that your administration has not
been fully cooperative in Senate efforts to obtain critical
information. Chairman Helms wrote to you on June 21, 1996--
prior to the Senate setting a date for a vote on the
Convention--and asked eight specific questions. Chairman Helms
also requested the provision and declassification of documents
and a cable relating to critical issues of Russian compliance
with existing chemical weapons arms control agreements and with
the Chemical Weapons Convention.
On July 26, 1996, having received no response to his
earlier letter, Chairman Helms reiterated his earlier request
and asked additional questions concerning the apparent Russian
decision to unilaterally end implementation of the 1990 U.S.-
Russian Bilateral Destruction Agreement on chemical weapons.
Chairman Helms also asked for specific information and
documents concerning Russian conditions for ratification of the
Chemical Weapons Convention, as well as other information
important to our consideration of the Convention. While
Chairman Helms did receive response to his letters on July 31
and on August 13, his request for declassification of documents
was refused and the answers to many of his questions were
incomplete.
During a Senate Select Committee on Intelligence hearing on
June 17, 1996, Senator Kyl asked for a specific document--a
cable written in Bonn, Germany by Arms Control and Disarmament
Agency (ACDA) Director Holum concerning current Russian
government positions on the Bilateral Destruction Agreement,
ratification of the Chemical Weapons Convention and on U.S.
assistance for the destruction of Russian chemical weapons. On
numerous occasions, Senator Kyl was told the document did not
exist. Finally, on July 26, Senator Kyl was able to see a
redacted version of the document under tightly controlled
circumstances but the document has not been made available to
Chairman Helms or other Senators.
Mr. President, the unanimous consent agreement of June 28,
1996, was entered into in good faith, and based on our
understanding that the administration could and would be fully
forthcoming in the provision of information and documents to
enable the Senate to fulfill its constitutional
responsibilities. Numerous judgments of the United States
intelligence community deserve as wide a circulation as
possible--particularly since they are distinctly different than
some public statements made by officials of your Administration
concerning the Convention.
Accordingly, I respectfully request that you reconsider
your refusal to declassify critical documents and consider the
declassification of important intelligence community
judgments--consistent with the need to protect intelligence
sources and methods. Specifically, I request that you act
immediately to declassify the May 21, 1996, cable written by
ACDA Director Holum and the July 8, 1996, letter from Russian
Prime Minister Chemomyrdin to Vice-President Gore, and consider
immediate declassification of the paragraphs from which the
attached statements are excerpted--all drawn from documents
produced by the Central Intelligence Agency and the Defense
Intelligence Agency on the Russian chemical weapons program,
the verifiability of the Chemical Weapons Convention, the
effect of the Convention on the chemical weapons arsenals of
rogue states, and the relevance of the Convention to acts of
terrorism committed with chemical weapons.
I make these requests to enable the Senate to fully prepare
for its consideration of the Chemical Weapons Convention. I am
certain you would agree it is necessary for the Senate to have
complete and usable information in order to fulfill our
constitutional obligations and to responsibly meet the terms of
the current unanimous consent agreement. Because the unanimous
consent agreement calls for the Senate to vote on the Chemical
Weapons Convention by September 14, 1996, I respectfully
request that you respond to my declassification request no
later than the close of business on Tuesday, September 10,
1996. With best wishes, I am
Sincerely,
Trent Lott.