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Disarmament Diplomacy

Issue No. 38, June 1999

Problems and Prospects of CWC Implementation After the Fourth Session of the Conference of States Parties
By Alexander Kelle

Introduction

102 out of 126 Member States to the Chemical Weapons Convention (CWC) took part in the Fourth Session of the Conference of States Parties (CSP), which was held in The Hague from 28 June to 2 July 1999. (1) In addition, 13 signatory States, four International Organisations and five Non-Governmental Organizations (NGOs) were admitted for participation. As in past sessions of the CSP, however, NGOs were allowed access only to some of the meetings and a part of the official documents of the Conference. (2)

The major task of the Conference was to decide upon the year 2000 Budget and Program of Work of the Organisation. Although the Friend of the Chair appointed for this issue had been able to make considerable progress in reducing the controversial issues, one of them still remained to be solved during the Fourth Session of the CSP: the distribution of Schedule 2 industry inspections among States Parties. Other friends of the chair or facilitators working in the intersessional period on unresolved issues have also been able to narrow down diverging opinions on the issues under facilitation. So, the Conference had before it a number of draft decisions prepared for approval. Other potential compromise solutions had not yet found a consensus, which necessitated further negotiations during this Session of the Conference.

The substantial work of the Conference started, however, with reports by the Director General of the Technical Secretariat, the Chairman of the Executive Council, and the Chairman of the Committee of the Whole, who was coordinating the work of the various facilitators, and the subsequent General Debate on the status of implementation of the Convention. (3)

The Intersessional Period

As in the preceeding intersessional period the Technical Secretariat continued to inspect CW related facilities as well as industry related facilities and plant sites, based upon the declarations by member States. As of 29 April the following facilities had been declared by member States (4): CW production facilities in 9 States Parties; 32 CW storage facilities in 4 States Parties; 33 CW destruction facilities in 4 States Parties; 54 old/abandoned CW sites in 8 States Parties; 24 Schedule 1 facilities in 19 States Parties; 315 Schedule 2 plant sites in 24 States Parties; 392 Schedule 3 plant sites in 27 States Parties; and 3,542 other chemical production facilities in 47 States Parties. These declarations have resulted in 460 inspections at 276 sites in 29 States Parties. 110 of these inspections were carried out in CW production facilities, 65 in CW storage facilities, 101 in CW destruction facilities, 47 in Schedule 1 facilities, 93 in Schedule 2 plant sites, 15 in Schedule 3 plant sites, 9 in abandoned CW sites, and 20 in old CW sites. It is noteworthy that the figures for both industrial declarations and inspections do not contain any data on the US, which still has not submitted its initial industry declaration.

As the Director General of the Technical Secretariat pointed out in his statement to the Fourth Session of the Conference of States Parties, a number of outreach activities were undertaken by the Secretariat to enlarge the number of member States and thus move closer to the universality of the Convention. However, only five States joined the Convention in the intersessional period - Estonia, the Federated States of Micronesia, the Holy See, Nigeria and the Repuhblic of Sudan -, leaving a big part of the African continent and especially the Middle East still outside the purview of the Convention. Surprisingly, the Director General adressed States in the latter region directly when he expressed his hope that the new Israeli government "will look afresh at the matter" of joining the CWC. In addition, he argued, "the time has come for Egypt, Lebanon, the Socialist People's Libyan Arab Jamahiriya, Syria and Yemen to ask themselves whether the linkage they have created between the Chemical Weapons Convention and Israel's membership of ... the NPT is actually working to their benefit." (5) In a similar vein, the Director General argued that Iraq and the Democratic People's Republic of Korea should accede to the Convention.

With respect to the implementation of the Convention's provisions, two years after entry into force of the CWC 29 States Parties still had to submit their initial declarations. What is more, the declarations of a significant number of States Parties remain incomplete, with the US amongst the "technically" non-compliant States. The status of States Parties' payment of assessed contributions gives an equaly bleak picture. As of 15 April only 36 of the then 121 member States had paid their 1999 assessments in full, 28 had paid partially and 57 had not paid at all. 1998 contributions were fully paid by 61, partially paid by 23, and not paid at all by 37 member States. For the 1999 budget alone, this low payment morale constitues a gap in the available funds of roughly NLG 30 million, or some 28% of the budget.

In his statement to the Conference the Technical Secretariat's Director General took up one issue that usually is pursued only by a group of States Parties to the Convention. Yet, he addressed "the need to foster the development of the peaceful use of chemistry in all States Parties", in a way that called into question the future utility of "ad hoc export control regimes such as the 'Australia Group'". He went on to "call on those States Parties which are members of such ad hoc export regimes to reconsider the application of such export controls to fellow States Parties" to the CWC. (6)

The Executive Council (EC) held four regular sessions between the Third and the Fourth Session of the CSP. In addition, six EC-meetings were convened at short notice. While the regular sessions are announced long before, have a full agenda, and through the receipt of a status of implementation report from the Technical Secretariat mainly serve the purpose of regular communication between the organs of the Organization, the newly established type of meetings can be called at short notice if an "issue or matter required for the fulfilment of its powers and functions and within its competence" comes up and requires the immediate attention of the EC.

Part of the issues the EC had to deal with during the intersessional period were returned to it after the Third Session of the CSP had been unable to reach a decision on them. They included inter alia the requirements for reporting information to the Council on verification activities; the attribution of cost related to inspections of old and abandoned chemical weapons; the draft relationship agreement between the United Nations and the OPCW; the fostering of international cooperation for peaceful purposes in the field of chemical activities; and the OPCW Staff Regulations.

Despite continuing negotiations between the Technical Secretariat and the EC on the reporting format for verification activities, including inspection results, no consensus could be achieved during the intersessional period which would have enabled the States Parties to monitor the implementation of all provisions of, and compliance with the Convention in a satisfactory manner. Therefore, the EC decided to hold further consultations on the matter. (7)

Two long overdue outstanding issues finally were resolved and could be approved by the Council during the intersessional period. During its Fourteenth Session in February a model facility agreement for chemical weapons storage facilities was agreed upon; this was followed during the Fifteenth Session in April by a model facility agreement for chemical weapons production facilities. Both decisions were submitted to the Conference for endorsement. (8) In addition, the Council had before it two requests - one from the Russian Federation and one from the Republic of Korea - for the conversion of chemical weapons production facilities for purposes not prohibited under the Convention. Both requests were approved and equally transferred to the Conference for confirmation. Furthermore, the Council considered a number of other CW related issues, among them CW destruction plans, and combined plans for destruction and verification, involving all declared CW possessor States, except Russia. It became obvious that although CW destruction - ot at least the planing for it - got underway since the last Session of the Conference of States Parties, the reimbursement of verification costs under Articles IV and V did not proceed as smoothly. To the contrary, the EC noted with concern that reimbursement payments by States Parties to the Organization were outstanding for the great majority of costs in question.

In his Report on the Results of Intersessional Work on the Unresolved Issues to the Conference the Chairman of the Committee of the Whole was able to present four issues that had been resolved by the facilitators assigned to the topics. With respect to the attribution of costs related to inspections of abandoned chemical weapons, the facilitator presented his compromise solution to the Executive Council's 14th session, where it was adopted. According to the EC's decision, the Organization will pay the initial inspection of declared abandoned CW. If the abandoned CW are determined by the Organization to be meeting the definition of old chemical weapons prouced between 1925 and 1946, "the costs of further required verification measures will be attributed to the abandoning State Party". (9) This is very close to the language already worked out during the Third Conference of States Parties in November 1998, but obviously the time was then not yet ripe for resolution of the issue. A related question - the attribution of costs related to inspections of old chemical weapons - was not solved in the intersessional period and had therefore to be taken up again during the Fourth Session of the Conference.

The already mentioned model facility agreements for CW storage facilities and CW production facilities were agreed upon and submitted to the Executive Council. In addition, two still outstanding CW related issues could be resolved by the facilitator appointed for the issue. They relate to the declaration requirements for chemical weapons and the determination of how States Parties report CW on their territory which are owned by another State. (10) Yet, despite these successes, a considerable number of unresolved issues remain more than two years after entry into force of the Convention. This state of affairs once more raised the question for the Fourth Session of the Conference on how to continue dealing with these matters. The Chairman of the Committee of the Whole who was in charge of coordinating the various facilitators work recalled that the "facilitation process was invented during the First Session of this Conference to deal with the problems created by the incomplete work of the Preparatory Commission and the composition of the Organization at that early stage." He went on th suggest that it "may now be time to close this chapter, and to start using the term 'unresolved issues' for those that actually deserve it". (11)

The Fourth Session of the Conference of States Parties

During the general debate 40 States Parties made statements in which they presented their assessments of the state of affairs in implementing the Convention. Two of them spoke on behalf of groups of States: Germany on behalf of the European Union and Algeria on behalf of the African Group. Recurring themes were the achievements made up to now in implementing the Convention, the need to redress imbalances in the fulfilment of treaty obligations, as well as the desirability of achieving universal adherence to the Convention.

In addition, a number of statements are noteworthy for some of the issues they addressed. In the Canadian statement, for example, it was announced that the "Government of Canada is in the process of removing its reservation to the 1925 Geneva Protocol in respect of chemical weapons, as this is no longer relevant or necessary, given the Chemical Weapons Convention." The German statement on behalf of the EU pointed out that "failure by a State Party with a major chemical industry to provide declarations has led in 1998 to 64 per cent of Schedule 2 inspections and 54 per cent of Schedule 3 inspections being carried out in Member States of the European Union. The EU believes that the time has come for all concerned to take action urgently to redress the imbalance", thereby setting the stage for the end-game of the budget negotiations, especially the industry verification part thereof.

The US statement reaffirmed that CW destruction in the country was well on target and stated that as of early June the US had destroyed close to 4,500 tons, or 14% of its CW stocks. Less promising was the US statement in relation to the timing of its industry declaration. Here, the US delegate announced that "it is unlikely that we will be in a position to submit the required declarations before early next year at best." Yet, this confession of continued US non-compliance with the Convention did not prevent him from criticizing the "artificial limits on further industrial inspections until all initial inspections have taken place", which were being sought by some States Parties. The Polish statement in the General Debate contained a passage on old CW in which it is postulated that there is "a fundamental requirement that the costs of verification of old chemical weapons shall be reimbursed to the OPCW in accordance with the same guidelines which apply to chemical weapons." Unfortunately, the Polish delegate did not elaborate on how he derived this opinion - which resembles that of the US on this matter to a considerable extent - from the text of the Convention.

As already indicated, the most controversial issue standing in the way of the finalization of the budget related to the question of Schedule 2 industry inspections. Already in the run-up to the Fourth Session of the CSP the uncertainty surrounding the submission of the initial US industry declaration led to the inclusion in the draft 2000 budget of 50 Schedule 2 inspections for States Parties who have not yet submitted the corresponding declaration, i.e. the United States. For some reason, it was assumed that the US would submit its declaration towards the end of 1999, so that 14 initial inspections of Schedule 2 plant sites could be conducted before the end of the year, leaving 36 initial inspections for the year 2000. (12) The number for Schedule 2 initial inspections in States Parties who have already submitted their initial inspection was set at 21, while the number of re-inspections for these countries was set at 10 for the year 2000. Furthermore, 34 Schedule 3 inspections and 6 inspections of plant sites with discrete organical chemicals (DOCs) are planned for the next year.

In case the 14 Schedule 2 initial inspections can not be conducted before the end of this year - which seems likely given the the US statement during the General debate - these inspections will be added to all 57 Schedule 2 initial inspections foreseen for the year 2000 and will be subject to a geographically equitable distribution among States Parties with declared Schedule 2 plant sites. At the same time the amount of Schedule 3 and DOC inspection will be reduced by 14. In case the US initial industry declaration is further delayed and therefore less than 36 initial Schedule 2 industry inspections will be conducted in 2000, the number of inspections not used up for this purpose will be added to Schedule 3 and DOC inspections, whose conduct will be limited to States Parties who did not receive any Schedule 2 inspections in 1998 and 1999. These rather complex fallback positions take into account the interests of all States Parties concerned and thus enabled the 2000 budget to be finalized.

Another thorny set of issues, which was inherited from the PrepCom, was under constant facilitation ever since and could not be resolved on the level of the Executive Council, concerns three issues related to old chemical weapons produced between 1925 and 1946: first, the criteria for judging their usability; second, the type of verification regime to be established to cover their destruction; and, third the attribution of the cost of their verification. Whereas a facilitator was appointed to the latter of the three issues, a solution in the context of the intersessional process was not possible.

According to the German position - Germany being one of the major players in this context - it is evident that although Article IV, para. 16 of the CWC stipulates that "each State party shall meet the costs of destruction of chemical weapons it is obliged to destroy", it is clear from para. 1 of the same Article that its scope does not cover "old chemical weapons and abandoned chemical weapons to which Part IV (B) of the Verification Annex applies". Since Part IV (B) of the Verification Annex does not contain any provision relating to the costs of verification, it is the German position that these costs have to be covered by the regular OPCW budget, not by the States Parties declaring old CW. Indeed, this reading of the Convention is supported by Article VIII, para. 7 of the CWC. It states that the cost of verification activities are to be borne by the organization itself, unless an exception to this basic rule is clearly spelled out in the Convention - as is the case for the verification of the storage and destruction of chemical weapons. Yet, no such exception exists for old CW. (13)

This view is strongly contested by the USA, the Russian Federation, and a view other States Parties. In a national paper submitted to the Conference, the US pointed out that according to Article IV (16) of the Convention "each State Party shall meet the costs of verification of destruction of chemical weapons" it it obliged to destroy. Because the Convention requires a State Party to destroy old chemical weapons produced between 1925 and 1946 that have deteriorated to such an extent that they can no longer be used as chemical weapons, Article IV (16) requires that State Party to meet the verification costs of destruction of those chemical weapons. (14) When no movement was discernible in these mutually exclusive positions, the Russian delegation towards the end of the Conference circulated a draft proposal which foresaw the treatment of cost of verification of old CW analogous to the solution found for abandoned CW. Since this would have prejudicated a solution through the back door of budget allocations, it proved equally inacceptable to States Parties concerned. In the end, the matter could not be resolved and had to be transferred back to the Executive Council which will take up the issue again during its next regular meeting in September.

Yet, altogether, the Fourth Session of the Conference can be regarded as a successful one: drafting of the budget caused less trouble than during the Third Session of the Conference, the decisions prepared drafted by the facilitators and transfered to the Conference by the Executive Council were confirmed without exception, and the Staff Regulation was agreed in principle, too. The only remaining detail to be worked out in this context concerns the starting point of the seven-year duration of staff contracts. While the Director General of the Secretariat and a few delegations insisted that this rule cannot be applied retroactively for current employees, taking into account the time span they have already been working for the Organization, other States Parties insisted that exactly this would have to be the case. Eventually, the Executive Council was tasked to solve this detail before the end of the year. Similarly, the finalization of the UN-OPCW Relationship Agreement was left with this Session's Chairman of the Committee of the Whole, the Hungarian Ambassador Gyarmati.

The Way Ahead

Another important step taken by the Fourth Session of the Conference which will have an impact on the future conduct of the Organization's business is the decision to abandon the intersessional procedure for addressing unresolved issues, as it was implemented in the past. Instead, the Executive Council will establish an open-ended working group to solve the issues which really need to be solved, thereby cutting of the organizational structure which some States Parties could utilize to pursue their "hobby-horses", which in a number of cases were of minor relevance for the operation of the Organization. Although there might be a danger of repeating the working group model as it was implemented during the PrepCom phase between early 1993 and entry into force of the Convention in April 1997, it seems that States Parties are aware of this potential pitfall and will certainly try to avoid it.

Although the relationship between the organs of OPCW, i.e. the Technical Secretariat and the Executive Council, appears to be on its way towards normalization, a certain tension in that regard was still identifiable during the Fourth Session of the CSP. On one hand the Director General complained in his report to the CSP about the classification of post within the Secretariat, the absence of a tenure policy for the Organization, and the Secretariat's work still being "held ransom to short-sighted acts of micromanagement and, on occassion, to individual idiosyncrasies." (15) This assessment is contrasted, on the other hand, by some States Parties ongoing concerns about the flow of information from the Secretariat to the Council and their insistence that it is up to the States Parties - not the Secretariat - to decide upon treaty compliant behavior. Yet, the prospects are good, that these utterances to a considerable extent are merely a reflection of structurally determined differences in attitude built into practically every international organization in which its member States share part of their responsibility with an international bureaucracy created for treaty implementation.

Notes and References

1. For an assessment of the first three Sessions of the Conference of States Parties and CWC implementation at these stages see A. Kelle, 'Setting Up the Organization for the Prohibition of Chemical Weapons', Disarmament Diplomacy, May 1997, pp.9-10; A. Kelle, 'Implementation of the CWC after the Second Session of the Conference of States Parties', Disarmament Diplomacy, December 1997, pp.15-19; A. Kelle: 'CWC Update. Business as Usual in Implementing the CWC? Not Quite Yet', Disarmament Diplomacy, November 1998, pp.8-12.

2. See Decision. Attendance by Non-Governmental Organizations and Industry Representatives at the Fourth Session of the Conference of the States Parties, Document C-IV/DEC.2, 28 June 1999.

3. See Report of the Executive Council on the Performance of its Activities (5 September 1998 - 29 April 1999), Document C-IV/1, 4 June 1999; Statement by the Director General to the Conference of States Parties at its Fourth Session, Document C-IV/DG.12, 28 June 1999; Chairman of the Committee of the Whole, Report on the Results of Intersessional Work on the Unresolved Issues, Document C-IV/CoW.1, 28 June 1999.

4. The following data are taken from Progress in The Hague, Quarterly Review no 26, in The CBW Conventions Bulletin, Issue No.44, June 1999, pp.14-15.

5. See Document C-IV/DG.12, p.2.

6. See Document C-IV/DG.12, p.5, 6.

7. On the other issues mentioned, see the sections on the Intersessional Procedure and on the Fourth Session of the CSP, respectively.

8. See documents EC-XIV/DEC.8, dated 5 February 1999 and EC-XV/DEC.8, dated 29 April 1999.

9. See document EC-XIV/DEC.2, dated 4 February 1999.

10. For more details see the Council´s decision as contained in document EC-XIV/DEC.3, dated 4 February 1999.

11. See Document C-IV/CoW.1, dated 28 June 1999, pp.4-5.

12. This latter figure then found its way into the Draft OPCW Programme and Budget 2000, as contained in Document C-IV/DEC/CRP.1/Rev.3, dated 21 June 1999, pp.18-19.

13. See Document EC-XV/NAT.5 for details of the German position.

14. See Document C-IV/NAT.10, dated 30 June 1999, p.2.

15. See Document C-IV/DG.12, dated 28 June 1999, p.9.

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

© 1999 The Acronym Institute.

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