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Disarmament Diplomacy

Issue No. 32, November 1998

CWC Update
By Alexander Kelle

Business as Usual in Implementing the CWC? Not Quite Yet!

96 States Parties to the Chemical Weapons Convention (CWC) met in The Hague from 16 to 20 November 1998 for the Third Session of the Conference of States Parties (CSP). Since the Second Session of the CSP, which took place in December 1997 (1), 19 States ratified or acceeded to the Convention, bringing the membership to 121. The Executive Council of the Organization for the Prohibition of Chemical Weapons (OPCW) held 6 regular meetings in the intersessional period during which some important decisions for the implementation of the CWC were taken. In addition, the OPCW's Technical Secretariat will by the end of the year have conducted around 250 inspections in 1998 alone plus 125 inspections which took place between entry into force and the end of 1997.

Developments in the Intersessional Period

Yet despite this trend towards an ever increasing membership and the large amount of inspections conducted, not all aspects of implementing the Convention proceeded as smoothly as one might have wished. The first area of concern relates to the (non-)actions by member States when it comes to the submission of their initial declarations and notifications to the OPCW's Technical Secretariat within the time-lines specified in the Convention. As of 2 November 1998 34 States Parties, among them Bosnia and Herzegovina and the Islamic Republic of Iran, had still to provide their initial declarations required under Articles III, IV, V and VI of the Convention. A number of other States made only partial declarations or notifications available to the OPCW. This is all the more disturbing because States in this latter group are not only small countries with no chemical weapons and no chemical industry, but also important States like the USA which only recently enacted implementing legislation on whose basis information from US chemical industry can be collected, aggregated and then declared to the OPCW. This delay on the US side has threatened to cause a seriously imbalanced distribution of industry inspections among member States. (2)

A second shortcoming is to be found in the payment of States Parties' assessed contributions. According to a document provided by the Director General of the Technical Secretariat to the Conference, as of 6 November 1998 only 50 out of then 119 States Parties had paid their assessed contributions for 1997 and 1998 in full. 21 member States paid their contributions only partially and the remaining 48 States Parties to the OPCW had not paid any contribution at all. The amount of contributions still missing is close to 29 Million Netherlands Gilder (NLG) or slightly less than 25% of the OPCW's 1998 budget. It is worth noting, however, that according to Article VIII, para. 8 of the Convention "a Member of the Organization which is in arrears in the payment of its financial contribution [...] 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 preceeding two full years." According to this stipulation, as many as 21 States Parties could loose their voting rights when the OPCW begins its third year of operation next May - unless they pay at least some of their arrears.

Another discrepancy in national implementation of the CWC's provisions occured in relation to trade in Schedule 2 and 3 chemicals with non-member States. The Verification Annex to the Convention requires in Parts VII and VIII that end-use certificates are requested from the recipient by the supplying State Party. Obviously, some CWC members had taken the view that certificates do not necessarily have to be issued by government authorities in the recipient States and that a private end-use declaration would suffice. Other member States, who in their trade relations with non-members insisted on government-issued end-use certificates, complained that their industry was being put at a disadvantage which led to the loss of trade. The issue was brought before the Executive Council of the OPCW for resolution and during the eighth Session of the Council it was decided that in future only "end-use certificates issued by the competent government authority of States not party to this Convention" shall qualify as acceptable certificates for the civil application of the commodities supplied.

Last, but certainly not least, member States' willingness to comply with their obligations has been questioned concerning the conduct of inspections on their territory. In some cases States Parties did not allow previously approved inspection equipment to be used, in others supporting or historical documentation to back up a State's declaration was not provided to inspection teams. The potentially most disturbing development, however, was the request for access by some member States to inspectors' notebooks. These States based their request on an extensive interpretation of parts of the Verification Annex, according to which States Parties have the right to receive "a list of samples and copies of information and data gathered" during inspections. This contradicts another section of the Verification Annex which clearly states that "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 [...] the Vienna Convention on Diplomatic Relations". Since these requests were sanctioned by the Executive Council, inspection team leaders have to provide copies of the notebooks if the inspected State party so decides. This practice contradicts the spirit of the CWC, whose effective implementation has to rely on an unbiased and independent inspection regime. (3)

Progress was achieved during the second intersessional period by some of the facilitators appointed to deal with unresolved issues that were inherited from the Preparatory Committee of the OPCW. The issues that could be resolved included inter alia the cost of verification related to the destruction of CW and CW production facilities (Articles IV and V), other CW issues, and model facility agreements for Schedule 1 facilities and Schedule 2 plant sites.

Model facility agreements (MFA) were agreed upon by States Parties concerned and brought before the Executive Council for adoption at its eighth (Schedule 2) and ninth (Schedule 1) session. In principle, the advantage of having such models lies in the greater homogeneity of the facility agreements which can be based on such a model which will thereby serve as the basis for inspections in the respective category of sites or facilities. The MFA for Schedule 2 plant sites contains some general provisions in Section 1 of the MFA. Other sections of the model cover inter alia regulations related to health and safety (Section 2), confidentiality (Section 3), inspection equipment (Section 5), pre-inspection activities, conduct of inspections, and debriefing and preliminary findings (Sections 6, 7, and 8), as well as liabilities (Section 11). The MFA for Schedule 1 facilities that was adopted during the ninth Executive Council meeting is structured similarly. Both MFAs were submitted to the CSP for its approval which the Conference gave without hesitation.

Regarding CW related issues, the facilitator assigned to the topic was able to take a step forward towards an "understanding of what is considered to be a chemical weapon, in particular in relation to Article II, subparagraphs 1(b) and 1(c)." This unwieldy title of the draft decision submitted to the Conference refers to the terms "munitions and devices" as contained in para. 1(b) and to "equipment" in para. 1(c). Instead of seeking to specify these terms as they relate to chemical weapons, the procedural solution which was taken tasks the Technical Secretariat to analyse declarations that have been submitted and to compile an illustrative, non-exhaustive list of CW munitions, devices and equipment, which will then be reported by the Director General to the next session of the Conference. Implicit in this decision which was adoped by the Conference is the assumption that on the basis of this list the issue will be regarded as resolved.

As regards the cost of verification under Articles IV and V of the Convention the crucial issue that was still unresolved at the end of the Second Session of the CSP related to the portion of inspectors' salaries that would be reimbursed by the possessor State to the OPCW. According to the compromise that was agreed upon during the ninth meeting of the Executive Council "a daily salary will be calculated by dividing an annual base salary by 365 days;" in competing calculation schemes it was proposed to divide the annual base salary by smaller numbers of actual working days or even working days minus vacation periods and the like. Yet, since these alternative models for calculating the daily salary of an inspector would have resulted in higher figures for reimbursements to the Organization they proved unacceptable to the larger CW possessor States. In a similar vein the Executive Council recommended to the Third Session of the CSP "to include reimbursement for the involvement of members of an inspection team in inspection planning before and inspection report generation after an inspection." For CW storage and production facilities the inspected States Parties will have to reimburse 10 inspector-days in addition to the duration of the inspection and 8 inspector-days for CW destruction facilities. Furthermore, the Council recommended that the CSP task the Technical Secretariat to apply and develop further cost saving methods in its verification activities under Articles IV and V. (4)

Besides the draft decisions brought before it by facilitators, the Executive Council took decisions and actions on a number of other substantive issues. During its eigth session the Council decided on the terms of appointment of the Director General of the Technical Secretariat. In this regard the Council for the first time - and up to now the only time - had to resort to a vote in order to achieve a solution. In addition, the Council agreed that the cost of proceedings before the Confidentiality Commission should be covered by the parties to such proceedings - a decision that could not be reached during the second session of the CSP. With the model facilities still outstanding, the Council also adopted a number of individual facility agreements which were negotiated between the Technical Secretariat and the respective State Party. Furthermore, the Council discussed the Interim OPCW Staff Rules as well as the Draft Relationship Agreement between the United Nations and the OPCW, without, however, being able to come to a conclusion of these two issues.

The Technical Secretariat's main tasks during the intersessional period were, of course, the receipt and processing of declarations, the conduct of inspections on the basis of these declarations, and the negotiation of facility agreements with inspected States Parties, so as to put the OPCW's future inspection activities on a solid foundation. Related to its inspection activities, the Technical Secretariat issued a document in early 1998 outlining a number of problems it encountered during the first eight months of inspection activities on a solid foundation. They are related to incidents at the point of entry/exit as well as in country logistics, the restriction of inspection equipment, uncertainties in inspection results requiring further action, and the time-lines for the completion of final inspection reports together with comments of inspected States Parties. (5) In addition, the Secretariat was involved in a range of outreach activities, like regional seminars, and conducted a number of training courses with a view to enhancing international cooperation and assistance. (6)

The Third Session of the Conference of States Parties

In the general debate of the third session of the CSP some 30 member States presented their national assessments - or, as in the case of Austria, the agreed-upon EU position - of the state of affairs in implementing the CWC. Recurring themes were the need to continue to work towards universality of the Convention, concerns about the absence of declarations or incomplete declarations submitted by States Parties, the fact that still a number of issues were unresolved, and the relation between the need to respect the confidentiality of certain types of information and at the same time the requirement for States Parties to be able to assess the compliance of other member States, which obviously necessitates a certain degree of openness. The most noteworthy national statement came from the Islamic Republic of Iran in which the forthcoming initial declarations of this country were announced, which obviously will include information on chemical weapons capabilities that were acquired during the war with Iraq in the 1980s.

The biggest amount of time during the one-week session of the Conference was devoted to finalization of the programme and budget of the Organization for 1999. This was somewhat surprising since the draft budget which was prepared by the Technical Secretariat in consultations with a facilitator especially apointed for the issue was rather well developped. In addition, the Executive Council as a whole was involved in the drafting of the budget at various stages. So a wide-ranging consensus could be expected. Yet, diverging positions with respect the two most contentious of the remaining unresolved aspects of the budget proved extremely difficult to reconcile. While one question merely concerned the establishment and funding of an additional P-4 Position in the Technical Secretariat, which one Western delegation categorically rejected, the second contentious question was related to a matter of substance, namely the question of re-inspections of Schedule 2 plant sites which had already received their initial inspections.

This time, a coalition led by some Western delegations fiercly sought to have a footnote included in the budget which would allow only a fixed portion of all Schedule 2 inspections in the year 1999 to be conducted at sites which had already received their initial inspection. (7) The biggest portion of this type of inspection, so the argument went, should be assigned to initial inspections in "latecomer" States with a sizeable chemical industry, most prominently the United States, in order to avoid an ever increasing imbalance in the burden put upon chemical industries of States Parties. In case the US declaration of its chemical industry would be delayed, inspections assigned to the "latecomers" in terms of industry declarations must not be interchangeable with those to be conducted in other States Parties.

The draft Programme and Budget foresaw a maximum number of 38 Schedule 2 inspections in States Parties that have already declared their Schedule 2 plant sites and 50 inspections for States Parties who had not done so before 20 November 1998. This formula was eventually agreed upon by the Conference. Furthermore, 17 inspections of Schedule 1 facilities and 7 inspections of Schedule 3 facilities are planned for 1999. Together with the 188 inspections at chemical weapons related facilities, the total number of planned inspections adds up to 300. The overall budget which was approved by the Conference amounts to roughly NLG 138 million. About NLG 61 million will be used to cover administrative and other cost. The remaining NLG 77 million are foreseen for the OPCW's verification activities.

Given the large amount of time which was consumed by the finalization of the budget, discussion of other substantive issues could take place only to a limited extent. One substantive question which in all likelihood would have benefitted from more time for consultations is related to the cost of verification of abandoned chemical weapons. Since the facilitator assigned to the issue was unable to reach consensus in the Executive Council on a draft decision, some additional consultations during the third session of the CSP were needed. When the matter seemed almost resolved, a Russian request to delete part of a sentence led to the unravelling of the draft decision and prevented its presentation to the Conference. (8)

According to the consensus that appeared to be achievable, the costs related to verification measures for abandoned chemical weapons which are not judged to fall into the category of old chemical weapons were to be attributed to the abandoning State Party. In case, however, the abandoned chemical weapons qualify as old chemical weapons, the draft decision envisaged that the OPCW cover the costs related to initial inspections and the abandoning State Party would be attributed the cost of further verification measures, "if such measures are required". It is exactly this latter conditional clause which the Russian request sought to eliminate from the draft decision. This, in turn, was interpreted by a State Party concerned that by default such additional verification measures (of the storage or destruction of these abandoned chemical weapons) would be the rule; an interpretation that was rejected by those State Parties who have declared old and/or abandoned CW because this would treat old CW on the same footing as "normal" CW which require systematic verification measures.

Other issues which were considered by the Conference, but were then delegated to the Executive Council because no solution could be found include the staff regulations, and the relationship agreement with the United Nations. With respect to the latter issue, the Conference was unable to overcome the concerns by one State Party that too much authority was delegated to the United Nations Security Council in the draft relationship agreement. Since, however, such an agreement is needed for rather practical issues like the continued use of UN passports by OPCW inspectors, the conclusion of a relationship agreement evolves into a matter of urgency and should therefore be resolved by the Executive Council before the next session of the CSP. In the debate about staff regulations the crucial point relates to the length of contracts for staff of the Technical Secretariat. Although there seemed to be a consensus forming, according to which the maximum employment duration would have been 7 years with an initial contract of three years and two extensions of two years each, the almost achieved consensus broke apart over the issue of exceptional prolongations of contracts, especially the issue of their duration and the question to which categories of personnel the exceptions should apply.

Assessment of the State of Play

It is a very unfortunate development that the third session of the CSP became bogged down with administrative questions, most prominently the finalization of the 1999 Programme and Budget of the Organization. This does certainly not reflect the role of the CSP as the political decision-making organ of the OPCW. This focus on administrative matters is also reflected in the dealings of the Executive Council where some States Parties are criticized of trying to "micro-manage" the OPCW's Technical Secretariat. According to the accused States Parties' response, this involvement in the details of the day-to-day operations of the Organization is at least partly necessitated by the not optimal performance of the Secretariat. Whichever side is right about its claim, both positions clearly show that the organs of the OPCW have not yet found their exact and durable roles and positions relative to one another. Consequently, the CWC's implementation in this regard cannot be described as "business as usual". This judgement is further underlined by the continuation of the Intersessional Procedure to Address Unresolved Issues, which was decided upon by the third session of the CSP. If all pieces were in place, the States Parties to the Convention would not see the need to continue this process, which is not foreseen in the Convention itself.

The second area in which States Parties to the CWC certainly cannot adopt a complacent "business as usual" approach concerns their obligations under the Convention. This covers financial contributions to the Organization, declaration and notification obligations, and national implementation measures, which includes the provision of adequate regulatory frameworks for the hosting of inspection teams. As the OPCW moves towards the completion of its second year of operation, it is high time that these deficiencies are remedied before the next sesion of the CSP which will take place in June/July 1999.

Notes and References

1. For an analysis of the first two Sessions of the Conference of States Parties see A. Kelle, 'Setting Up the Organization for the Prohibition of Chemical Weapons', Disarmament Diplomacy No. 15, May 1997, pp.9-10; and: A. Kelle, 'Implementation of the CWC after the Second Session of the Conference of States Parties', Disarmament Diplomacy No. 21, December 1997, pp.15-19.

2. On the relosution of this issue see the section on the Third Session of the Conference of States Parties below.

3. For a more detailed analysis of this problem and its potential negative implications see Chemical and Biological Weapons Conventions Bulletin, No.39, March 1998, p.15; Amy E. Smithson, Rudderless: The Chemical Weapons Convention at 1 1/2, Report No.25, Washington, D.C.: The Henry L. Stimson Center, September 1998, pp.42f.

4. For further details see the decision of the Executive Council as contained in Document EC-XI/DEC.1 of 4 September 1998.

5. See OPCW Verification Activities. A Preliminary Asessment of Some Operational Issues Which Have Arisen During the First Eight Months Since Entry Into Force, Document S/36/98, dated 27 January 1998 for further details.

6. For a detailed description of the OPCW's activities in this field see the Organizations Web-page http://www.opcw.nl/ica/

7. See Footnote 4 on page 74 in the Draft OPCW Programme and Budget 1999, dated 9 November 1998.

8. This Russian request has been circulated as an official document of the Confderence. See document C-III/NAT.5 of 20 November 1998.

Dr. Alexander Kelle is Research Associate at the Non-Proliferation Project of the Peace Research Institute Frankfurt (PRIF).

© 1998 The Acronym Institute.

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