CBW Conventions Bulletin, Quarterly Journal of the Harvard Sussex Program
Issue 68  June 2005


”Never under any circumstances”

The CWC in The Third Year After its First Review-Conference

Dr. Walter Krutzsch [1]

The First Review Conference (RevCon) of the Organisation for the Prohibition of Chemical Weapons (OPCW) had the task and opportunity to assess, further develop and restate the nearly universal international consensus to ban and totally eliminate chemical weapons. For this consensus to prevail, its principles must be upheld when challenged by political tensions, war and terrorism, and must be adapted to fundamental economic, scientific and technological changes. An overall mobilisation of governmental and public effort is required to achieve this objective. In the light of these circumstances the RevCon was successful in that it did not end in disarray. A Political Declaration[2] and a comprehensive report[3] were agreed upon. They can serve as a roadmap for further action. At the same time it must not be overlooked, that those documents have also served to paper over serious shortcomings in the implementation of the Chemical Weapons Convention (CWC)[4]. Whether their potential value will crystallise and promote a total chemical weapons ban must be measured against reality.

 

BASIC TENETS

Universality

The Convention enjoys broad international recognition but not universal acceptance. When the RevCon convened in April 2003, the number of States Parties was 151. As of 3 July 2005 the number stood at 169. There are 15 States that have signed the Convention but not yet ratified it, and around a dozen States that have neither signed nor acceded. These include some States that believe their security interests would not allow accession since they face military threats, including nuclear weapons threats. In this category are States in the Middle East. This hurdle may be overcome if activities currently under way to establish in the Middle East a zone free from weapons of mass destruction are brought to fruition. Other States argue that the Convention will bring them no advantage since dual-use chemicals and sensitive technology may continue to be denied them by the Australia Group. Other States have not joined because they lack the financial or human resources to implement the CWC. Thus, more must be done to achieve universality[5]. It is not only ratification or accession that matters, but also changing the reality to include:

  • destroying chemical weapons and related production facilities;
  • preventing proliferation of chemical weapons, including the proliferation of new types of such weapons;
  • regular publication of information about compliance or non-compliance, as determined by objective verification activities;
  • effective assistance and protection against chemical weapons;
  • unrestricted economic and technological development under the aegis of the Convention;
  • international co-operation in chemical activities not prohibited by the Convention.

"Interpretation in good faith in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose".

With these words the 1969 Vienna Convention[6] codifies the general rule of treaty interpretation. This rule must be respected if the international consensus enshrined in the text of the CWC if to be implemented. From the first days of the Preparatory Commission (1993-1997) a misguided interpretation of the CWC was followed in some areas and continues to persist, culminating in misinterpreting the definition of chemical weapons. Article II of the Convention defines as chemical weapons all toxic chemicals, related precursors, munitions and special devices, unless they are intended for purposes ‘not prohibited under the Convention’. Such purposes are listed in the same Article and constitute the ultimate criterion (often referenced to as the general purpose criterion) for exempting toxic chemicals from prohibition. This definition covers all toxic chemicals including novel agents that have been or may be created, for instance, the so-called ’nonlethal agents‘. Disregarding the definition amounts to attacking the comprehensive prohibition stipulated in Article I of the Convention which excludes any restriction with the words: ’never under any circumstances‘.

 

Issue of interpretation: ‘Nonlethal’ weapons and law enforcement including domestic riot control in Article II, paragraph 9 (d)

In 2002, The Sunshine Project reported on the activities of certain US research and development programs on ‘nonlethal’ chemical weapons (e. g. US Marine Corps sponsored work at the Pennsylvania State University) which might violate the CWC[7]. In October of the same year, the hostage drama in a Moscow theatre, where chemicals related to Fentanyl, an anaesthetic, were used to help free the hostages, and which in the process killed more than 120 of them, was portrayed as one of the scenarios in which new ’nonlethal‘ weapons are needed. Interpretations have been brought forward that ignored both the letter and the spirit of the Convention. When the RevCon convened, action was critically to prevent damage to the Convention. However, despite the fact that New Zealand, Norway and Switzerland had made national statements referring to this issue, the OPCW chose not to take action in the RevCon.[8]

During the Open Forum on the Chemical Weapons Convention convened in parallel to the formal sessions of the RevCon, several speakers from outside the OPCW addressed the subject of Article II, subparagraph 9(d)[9]. Dr. Adolf von Wagner - former Ambassador of the Federal Republic of Germany and, during the last year of CWC negotiations in 1992, Chairman of the Ad Hoc Committee on Chemical Weapons of the Conference on Disarmament - referred to the issue, in his Keynote Address, saying that attempts to misuse this provision to justify the use of chemicals - other than riot control agents – made it clear that "any interpretation considering ‘law enforcement’ to be a purpose of its own, not defined in the Convention and, therefore, allowing to differentiate between toxic chemicals not prohibited for law enforcement and toxic chemicals not prohibited for domestic riot control is simply false". Following from this, the definition of ‘riot control agent’, in paragraph 7 of Article II, is valid for all agents for the purposes covered by the statement in paragraph 9 (d). Furthermore, von Wagner referred to the Geneva Protocol of 1925 that prohibits any use of toxic chemicals in any conflict[10]. Any interpretation considering law enforcement to be a purpose of its own and, therefore, allowing a differentiation between toxic chemicals not prohibited for law enforcement and toxic chemicals not prohibited for domestic riot control purposes – from a purely legal standpoint – is simply false. It wood be an interpretation out of context and inconsistent with the object and purpose of the CWC. According to the rule stated in Article 30 paragraph 2 of the Vienna Convention, and Article XIII of the CWC, an interpretation incompatible with the prohibition of the Geneva Protocol is excluded. A study by the present author has come to the same conclusion.[11]

Most other contributions on this subject in the Forum supported the position of Ambassador von Wagner. Only Professor D. Fidler for the Federation of American Scientists, opposed it. He argued that "the use of toxic chemicals for law enforcement purposes under the CWC is not limited to riot control agents", explaining that he considered law enforcement as a category of its own (separated from riot control) for which all toxic chemicals, starting from agents with low lethality and ending with agents comprising intentional lethal doses are permitted except those listed in Schedule I. This interpretation is considered to be justified, he maintained, since the use of lethal chemicals for execution of the death penalty is covered by the purpose ‘law enforcement’. It is must be said that the justification of chemicals for such purpose was did not enter into CWC negotiations as it was not salient to the Convention’s object and purpose. To proceed from Fidler’s false assumption to an interpretation of paragraph 9 (d) would be abstruse and incompatible with interpretation in good faith.

Malcolm. Dando of Bradford University, referring to the Moscow siege case, warned the Forum that "some military forces, some police forces, might consider or be tempted to use similar kinds of chemicals in similar kinds of operations – and not just in a domestic context". In a previous study Dando had observed that renewed interest in "non-lethal" recently developed within the military forces of technologically advanced countries. At this juncture he cited an publication by Fidler in which the latter reflected on arguments that new ‘nonlethal’ weapons give new capabilities to military forces – which then ‘effect how we evaluate the ethics of weapons‘ use’ even to the point where the elements of international law concerning disarmament and of humanitarian law in armed conflict may be set aside if operational needs and new military technology require[12].

 

EFFECTIVENESS OF ONGOING VERIFICATION ACTIVITES

Issues with direct impact upon the effectiveness of the CWC verification system include: the independent and non-partisan position of the Technical Secretariat (TS), national implementation by States Parties, recognition of technological developments, use of sampling and analysis during inspection, and the effects of political decisions on the Verification and Inspectorate Divisions of the Technical Secretariat. These are now addressed in turn.

 

Independence of the Technical Secretariat

In order to fulfil their purpose, verification activities have to be carried out by an independent body. Article VIII, paragraph 46 of the CWC prohibits the Director-General, the inspectors and the members of the staff of the TS ‘[t]o seek or receive instructions from any Government or from any other source external to the Organisation’. The provision in paragraph 47 obligates the States Parties to ‘respect the exclusively international character of the responsibilities’ of those persons and ‘not seek to influence them in the discharge of their responsibilities’. Bur the independence of the TS, a cornerstone for objective verification, is being eroded. The Administrative Tribunal of the International Labour Organisation (ILO) considers that such disregard is inconsistent with the proper functioning of an international organisation[13]. The States Parties of the CWC stress (in paragraph 12 of the Political Declaration of the RevCon) that their commitment their commitment to an effective and credible verification regime.

In order to preserve independent verification, the provisions on privileges and immunities of the members of the inspection teams provide for full diplomatic immunity, inter alia, for the papers and correspondence, including records and samples and approved equipment[14].These key provisions had been violated during hundreds of inspections. Despite the fact that the inspectors’ notebooks are protected by immunity under the Convention, States Parties may nevertheless request that copies of the notebooks be made.

 

National implementation

Much remains to implement fully the obligations under Article VII. This is clearly expressed in paragraphs 15 and 16 of the Political Declaration. Nicholas Sims, in his presentation to the Open Forum, underlined the undertaking in Article VII ‘not to permit in any place under its control any activity prohibited to a State Party under this Convention’, including the promulgation of appropriate legislation[15]. Despite increasing levels of important assistance from the TS over recent years, the present stage of affairs is not encouraging: As of 31 October 2004 most States Parties had not fully complied with this obligation: while 82% of States Parties had established a National Authority[16], only 58% had informed the OPCW of the implementing legislation they have adopted and only 32% had reported legislation that covers all key areas for enforcement of the Convention[17]. Besides national legislation, further enforcement measures are also required in order to ensure that all not-prohibited activities are consistent with the criteria defined by Article II, especially the general purpose criterion. This relates to operational monitoring and steering of domestic chemical activities (production, consumption, export, import).

The Schedules of chemicals are an important tool, especially for verification and implementation of import and export restrictions. States Parties are to inform the OPCW when experience dictates that additions to the Schedules are required. This obligation is widely neglected, however, especially by those States Parties that have extensive research programs on chemical, biological agents. But while Schedules of chemicals should be an important tool for referencing non-proliferation implementation, they in effect became a tool for limiting verification. The provision of Article II, paragraph 2, that subsumes all toxic chemicals into the scope of the Convention, will become void if routine verification is confined to the existing Schedules without continuously adapting them to developments. Schedules affect what should be declared under the provisions of Part VI of the Verification Annex. Outdated Schedules result in loopholes. These loopholes that the policy making organs need to closed by addressing the risks posed by new agents and techniques as quickly as possible.

 

Taking into account scientific and technological developments

The Review Conference recognised the need to consider new industrial methods not foreseen by the Convention, such as micro reactor and nano technologies. Other new chemical technologies necessitate a closer look at certain facilities producing unscheduled discrete organic chemicals (DOCs) and data on risk chemicals should be added into the OPCW analytical database. For example, agents of the Novichok-category are not in the Schedules[18]. In the Open Forum it was explained[19] that sophisticated process control nowadays demands high a very high degree of technical knowledge the technical knowledge of the inspectors. Micro reactor based production of Scheduled chemicals, Novichoks, etc. can, in a globalised environment, potentially be diverted for illicit purposes. Additional attention must be given to biotechnology and mid spectrum agents and agents that pose a serious risk as ‘non-lethal’ weapons. Malcolm Dando warned: "I think this Conference...will strongly reaffirm that the Convention unequivocally covers all chemicals and particularly points out that in consequence things like toxins, prions, proteins, peptides and bioregulators and their biologically or synthetically produced analogues and components are covered, and if you don’t do it, when you will come back next time you’ll have a real mess on your hands’[20]. Unfortunately, the Conference did not respond to those warnings.

 

Sampling and analysis

The analysis of samples is a very important tool provided by the Convention to obtain indisputable evidence about compliance and non-compliance. However, the use of this tool by the TS is being effectively curtailed: States Parties mostly prefer to have their own equipment used. While the Convention prohibits a States Party from placing any restriction on the inspection team using equipment properly approved by the Conference, the implementation of this prohibition has been impeded by several means. This started 1997 when the US made the legally flawed reservation not to allow samples to be analysed outside their own territory. India followed this example and included a right of refusal into her national law. The obstruction of this essential provision was followed by financial constraints for equipment and training of personnel. Nowadays, in neglect of CWC provisions, States Parties in general are questioning the need for sample analysis in chemical industry verification. This is the thrust of reactions by two States Parties (Germany and Japan) to an April 2004 draft paper of the TS Sampling and Analysis in Article VI Inspections. The Arguments were: Sampling and analysis is too costly for the OPCW; it might be used tentatively at some complex Schedule 2 plant sides; it would take away financial resources from verification of CW destruction; it would be incompatible with the ‘least intrusive manner’ principle of the CWC; and it should be used only on exceptional occasions to in order to clarify ambiguities. This position obviously contradicts the findings by the International Union of Pure and Applied Chemistry (IUPAC). Christopher K. Murphy, Program Officer at the US National Academy of Sciences[21] presented it on behalf of the Union, comprising National Academies and Chemical Societies of forty-four countries, which account for 85% of the chemical industry world-wide. He discussed new synthetic methodologies of producing chemicals, new methodologies, like database mining, which can allow rapid focus on toxic chemical developments, and the fact that modest sized batch facilities could potentially be used to produce toxic chemicals that might be diverted for illicit purposes. He focussed on the consequences for verification, for instance for the Other Chemical Production Facilities regime and, in general, emphasised new analytical methods and analytical instrumentation of increased sensitivity. It is to be hoped that his idea of a two-way street of education and outreach, to be paved between the international scientific society and the OPCW, will be taken up not only by the staff of the OPCW Secretariat but also by the representations of States Parties to the OPCW.

 

Efficiency of the political process in the OPCW

The deliberations of the RevCon were suspended to convene a one-day Special Session of the Conference of States Parties. Amazingly, the special session adopted a decision on the commencement of a tenure policy of 7 years maximum for TS staff and inspectors, which had been debated on and off for 10 years. It was decided that the first seven-year period began retroactively in 1999. The decision insists on a turnover every year of 14.5% of all personnel belonging to these categories, and allows a special one-off exception during the first period to retain 10% of staff beyond 2006 up to 2009[22]. This will ensure that the TS cannot retain its most experienced people, particularly its professional staff in Verification and Inspectorate Divisions. The institutional memory of the TS built up since 1993 will be gone by 2009. The increasing load of inspecting destruction facilities for chemical weapons in the second part of this decade, coupled with the need to train new people, will place heavier demands upon professionalism and integrity of the entire verification effort (Declaration paragraph 14). There was an awareness of the dangers related to such a concept, but, due to the pressures by influential States Parties, a decision was forced at this Special Session.

There is striking inconsistency between adopting such a decision and, on the other hand, making a commitment to a credible and effective verification regime[23]. While there is reason to promote some degree of healthy turnover of staff, it is clearly counterproductive to execute this in an inflexible way. It should be a matter of prime importance to prevent the loss of highly qualified and experienced staff, irreplaceable in the light of the new challenges in the field of verification and national implementation of the CWC.

 

MODUS OPERANDI OF THE OPCW

The Executive Council

In 2001, after the May session of the Conference of the States Parties, the Harvard-Sussex Program observed an ‘increasing paralysis in the policy making organs of the Organisation’. The Appeal on the part of former negotiators and interested scientists for upholding the CWC stated ‘regrettably, governments have reduced, to less than a routine level, the attention they give to the Convention’[24]. Alexander Kelle noticed a ‘culture of deferral’ with respect to the decision-making of the Executive Council[25].

At the present date, the list of unresolved issues, including some left over from the Paris Resolution of 1992[26], has still not been addressed. And further issues evolving from inspection activities have arisen that will require action by the Council. Its record is less than encouraging when it comes to the solution of key issues of the verification regime. This goes for both destruction of chemical weapons and industry verification. Furthermore, there have been significant delays within the Executive Council in approving detailed plans for the verification of destruction of chemical weapons or chemical weapons production facilities, and/or decisions on requests and plans for the conversion of chemical weapons production facilities. Despite the opinion of the Scientific Advisory Board that salts of Scheduled chemicals should themselves be scheduled, the Council did not act accordingly and buried the case in an expert meeting.

There were bright spots however: the decisions on boundaries of production and captive use of Schedule 2 and 3 chemicals, which greatly enhance the potential for even handed declaration of the production of such chemicals; and the swift support of a change under Article XV to enable Libya to make use of the possibility of converting a former CW production facility to purposes not prohibited.

A rule of decision-making solely by consensus is illegal[27], and has proved to be counterproductive for years. Entrusting representatives with the preparation of decisions as ‘facilitators’ might be constructive if they could present the results of their efforts when the necessary support – a two thirds majority of all members of the Executive Council – is visible. Endless ‘facilitating’ due to the resistance of one or few members hiding in anonymity ends up by hampering the work, not only of the Council but of the OPCW itself. The paralysis of the Council necessarily negatively affects the work of the Conference of the States Parties, since Article VIII mandates the Council with important general tasks and 68 special tasks[28] which are essential for the Conference.

The most important responsibility of the Council is stipulated in paragraph 36 of Article VIII: consideration of doubts and concerns regarding compliance and cases of non-compliance. The Council, together with the respected State Party, must either redress the situation or, if that fails, take other measures[29]. Eight years after entry into force, not one such case has happened or, more exactly, has become generally known. This contrasts with the bulk of issues or matters of non-compliance (e.g. arbitrary misinterpretation of provisions, violating the immunities of inspectors and inspection equipment, non-implementation of national measures, submitting initial declarations or financial contributions after the due date) of which only a few are mentioned here. This stalemate is reflected also in the work of Conference that has not yet assumed responsibility under Article XII since the Council failed to make recommendations concerning compliance. An exception is an Article VII Action Plan of the TS mandated by the RevCon[30]. Especially with regard to Resolution 1540 of the UN Security Council (see below) the obligation of the Conference to bring cases of particular gravity to the attention of the UN General Assembly and the UN Security Council deserves consideration.

A transparent procedure ought to be established to solve issues on compliance in accordance with Article VIII, paragraphs 35 and 36 CWC within fixed time frames. Only this will exclude attempts to force inspectors or related staff of the Verification Division to neglect unresolved ambiguities or otherwise to influence the evaluation of verification material. A ‘culture of concealment’ must not become added to the ‘culture of deferral’.

 

The Budgetary Process

The budgetary process, also a hostage of the illegal consensus procedures of the Council, has proved damaging to the proper evolution of the OPCW and to the verification regimes. First, the budget has never been established as a result of reflections about what is needed for a credible verification regime. In order to gain consensus every year a quid pro quo is sought. Secondly, the budget has been rationalised as a result of how much States Parties are willing to pay.

The TS is supposed to determine where, when and how often facilities should be inspected. Instead, each year a target number of inspections in each category is set through the budget process. For example, while the TS has pointed out that the risk engendered by a declared Schedule 1 facility is minimal, the budget has ensured that it may have been inspected as many as 6 times. This contrasts with the nearly 5000 declared Other Chemical Production Facilities where less than 250 inspections have been accomplished in that same period of time.

Nowhere in the Convention does it say that States Parties can control verification by budgetary actions, but each year it happens, to the detriment of real, credible verification. The budgetary process should follow the precepts of results based budgeting (RBB) concepts which have been endorsed by the Rev Con. In this process the TS would adjudge the need for inspections and the numbers of inspections in each category: Schedule 1, Schedule 2, Schedule 3 and OCPF. That would result in credible Article VI verification. The States Parties should then attempt to support these proposals by appropriating the necessary funding. If funds are limited, the most important verification measures should be supported. Verification needs to be seen as central task of the TS and not one that gets billing equal to or less than administration, international cooporation and assistance, external relations, etc. As the years have passed the status of verification activities in relation to more diplomatic and political activities has been eroded.

 

UN Security Council resolution 1540

The resolution adopted in April 2004 by the United Nations Security Council is aimed at barring the proliferation of nuclear, chemical and biological weapons. It refers to Chapter VII of the UN Charter: ’Action with Respect to Threats to Peace, Breaches of the Peace and Acts of Aggression’. Under Article 39 in this Chapter, the Security Council "shall determine the existence of any threat to the peace and shall make recommendations’ that are binding for all States and international organisations[31]. This Resolution has significant repercussions on the CWC and the work of the OPCW and the States Parties. Its implementation has to take into account Article 2, paragraph 1 of the UN Charter, which stipulates the principle of sovereign equality of States. Their constitutional order will prevail when implementing the UN Security Council’s recommendations concerning legislation for specific enforcement measures with regard to non-state actors[32]. Equality before the law, a principle of every democratic constitution, has to be respected. It requires implementing general international obligations by promulgating domestic prohibitions that bind everybody under the State’s jurisdiction. Resolution 1540 defines a non-state actor as an ‘individual or entity not acting under the lawful authority of any State in conducting activities which come within the scope of this resolution’. First, ‘a lawful authority of any State’ cannot justify activities that are generally prohibited under multilateral international law. Secondly, national enforcement measures governments for international disarmament treaties cannot differentiate between people acting for a government and non-state actors. Instead, the wording of the CWC, Article VII, fulfils those requirements. It obligates States Parties ‘to prohibit natural and legal persons... any activity prohibited to a State Party under this Convention’[33]. This wording prevails over that of UN Resolution 1540. Because of the aforementioned, it should be given model-character for the respective provisions for nuclear and biological weapons required by the resolution.

Paragraph 5 of the resolution states that the rights and obligations from all three disarmament treaties for their Members and international organisations remain untouched by the resolution. This is also true for Article XI of the CWC that requires economic co-operation in the chemical field, as well as the promoting and expanding of international trade and technological development. Thereby, the binding interpretation of Article XI is to be respected that had been agreed upon by the Conference of Disarmament on a text proposed by the Australian representative in the CD speaking on behalf of the members of the ‘Australia Group’[34]. It will add to the responsibility of the political organs and the TS of the OPCW to provide clear verification results with strong evidence about compliance of the States Parties. In such cases, the rights of States Parties under Article XI must not be impaired by any export controls of the ‘Australia Group’ or other measures not foreseen in the CWC.

Pursuant to the UN-OPCW Relationship Agreement, the UN and the OPCW are to intensify co-operation in aspects of information about compliance with the obligations under the CWC identical or similar with those under the UN Resolution. This relates to the following aspects: National implementation issues, such as legislation, penal enforcement, import and export of dual use agents, international verification, independent and unbiased activities of the TS, Schedules of chemicals and sample analysis updated to new scientific and technological developments, export and import control, and physical protection of stored CW and civil chemical facilities.

 

Transparency of work and accountability for results

The Political Declaration of the RevCon states in its first paragraph that the Convention, universally and effectively implemented, will be an asset for all humankind. If this statement is to be more than just an empty phrase, it must be followed up by a concept of action to provide the public with meaningful, quantitative, and properly evaluated information on the activities of the OPCW. The OPCW is not transparent. Except for a sanitised Annual Report, which avoids any assessment of the degree of compliance, or unresolved issues of compliance or non-compliance, not much information reaches the public - including the NGOs, researchers and associations. The annual Verification Implementation Report is classified ‘highly protected’ and remains governments under lock and key within the TS and the States Parties Governments. Under the present circumstances, most substantive information released from the OPCW Headquarters reaches the delegates of a State Party in The Hague and the desk in its foreign ministry or National Authority, but the information reaches neither the parliaments nor the public. The only information available to an interested public is the Quarterly Review on Progress in The Hague that this Bulletin began publishing in 1993, but this has also suffered from the information controls that imbue the Organisation.

 

CONCLUSION

Disarmament law is a project to change civil society. This change will happen when the Convention is embraced by society. Without the support of society, the OPCW cannot honestly be said to be successful.

"An asset for the sake of peace and humanity - 10th anniversary the Chemical Weapons Ban" is the title of an appeal launched on 13 January 2003. It has been signed by more than 60 individuals and institutions that actively participated in the negotiation and implementation of the CWC[35]. It concludes:

"Regrettably, governments have reduced, to less than a routine level, the attention they give to the Convention. A proactive policy is needed, geared to the full implementation of the Convention and its adaptation, where appropriate, in the light of experience gained during its first five years of implementation, scientific and technological advances and the new challenges posed by the threat of chemical terrorism."

A way forward requires

"a change in the present restrictive attitude, by some States Parties, towards the CW Convention and its Organisation and an effort by all States Parties to redress the damage inflicted on it;

resolute effort by the political organs of the Organisation to concentrate on issues of compliance and to inform the public about those issues - they must be prepared to take difficult decisions more effectively and more transparently; and

a return to the basic consensus developed during the negotiation of this Convention: each State Party must be convinced by objective and impartial procedures that all other States Parties fully comply with and abide by their respective obligations.

Looming dangers of war should inspire such action to maintain the purposes and objectives of the Convention."


 


 

 

[1] The author is a Berlin-based consultant on the Chemical Weapons Convention, having previously held positions within the OPCW Technical Secretariat and its forerunner, die Provisional Technical Secretariat. As a member of the Delegation of the German Democratic Republic to the Conference on Disarmament in Geneva, he was one of the longer serving negotiators of the Convention, latterly chairing working Groups of the CD Ad Hoc Committee on Chemical Weapons.

[2] OPCW document RC-1/3, 9 May 2003: www.opcw.org/cwrevcon/doc/NAT/FRCpoliticaldeclation.html.

[3] OPCW document RC-1/5, 9 May 2003. See also The CBW Conventions Bulletin, no 60, June 2003, pp. 2-5.

[4] Robert J Mathews, Reviewing the Chemical Weapons Convention: gently does it, VERTIC Verification Yearbook 2003 available under www.vertic.org (assets/YB03/VY03_Mathews.pdf).).

[5] Jean Pascal Zanders, The Chemical Weapons Convention and universality: A question of quantity over quality? disarmament forum. [United Nations Institute for Disarmament Research] no 4, 2002, pp. 23-29.

[6] The Vienna Convention on the Law of Treaties (1969), came into force on 27 January 1980.

[7] Sunshine-project (2002): http://www.sunshine-project.org/publications/pr240902map.html.

[8] The CBW Conventions Bulletin, ibid.

[9] Open Forum on the Chemical Weapons Convention: Challenges to the Chemical Weapons Ban, Harvard Sussex Program on CBW Armament and Arms Limitation. Transcript is also available at the HSP website at http://www.sussex.ac/uk/spru/hsp/publications.

[10] Only the use of tear gas against internal riots may be considered to be exempted from this prohibition. Baxter and Buergenthal conclude: The Text of the Prohibition of chemical warfare in the Geneva Protocol admits of both a broad and a restrictive interpretation of its intended scope. It is clear, however, that in their conduct and declarations in the past four decades the parties to the Protocol have demonstrated their understanding that this prohibition bars the use in war of all chemical agents having a direct effect on man that might be used as anti-personnel weapons, including tear gas and other forms of irritant chemicals. See: Baxter and Buergenthal, Legal Aspects of the Geneva Protocol of 1925 in The Control of Chemical and Biological Weapons, Carnegie Endowment for International Peace, New York, 1971. – (The CWC Article XIII expressly excludes any interpretation of the CWC ‘limiting or detracting from the obligations assumed under the Geneva Protocol. WK).

[11] Walter Krutzsch, Non-lethal chemicals for law enforcement? (spring 2003): .

[12] Malcolm Dando: Scientific and technological change and the future of the CWC: the problem of non-lethal weapons, disarmament forum, four, 2002, United Nations Institute for Disarmament Geneva, pp.33-44. Dando referred to the Article: D.P. Fidler, 2001, ‘Non-lethal’ weapons and international law: Three perspectives in the future, Medicine, Conflict and Survival, vol.17, pp 194-206. .

[13] See ILO Administrative Tribunal: Judgements No.2032, No.2232, No.2256.

[14] CWC, Annex on Implementation and Verification (Verification Annex), Part II, paragraph 11.

[15] Nicolas A, Sims, Reader in International Relations, London School of Economics and Political Science; National Implementation Legislation, Open Forum, ibid., pp.13 to 16.

[16] The national focal point for effective liaison with the Organisation and other States Parties (Art. VII, 4).

[17] Annex 1 to OPCW document C-9/DG.7, dated 23 November 2004.

[18] References inter alia: H. Lwe, V. Hessel and A. Mueller, Microreactors. Prospects already achieved and possible misuse, Pure Appl. Chem., 74, 2271 (2002); Advanced microreactors make chemical processing safer, faster, ChemNews.Com, http:/chemnews.cambridgesoft.com/art.cfm?S=199; Ibid. references 3 and 4; M. Freemantle, "Numbering up" small reactors, Chemical and Engineering News, 81, 36 (2003); J. Matousek and I. Masek in The ASA Newsletter, 94-5 and J. Bajgar, J. Fusek and J. Vachek, 94-4.

[19] Ren van Sloten, International Council of Chemical Associations, Christopher K. Murphy, International Union of Pure and Applied Chemistry, Graham Pearson, Department of Peace Studies at Bradford University, Malcolm Dando, Department of Peace Studies at Bradford University. See also Malcolm Dando: Scientific and Technological Change and the future of the CWC in disarmament forum no.4 (2002).

[20] Open Forum, ibid. p.39

[21] Open Forum, ibid. p.19

[22] OPCW document C.-SS-2/Dec1, dated 30 April 2003

[23] Vertic (2002). Getting verification right (The report argues for "scrapping of the rigid fixed tenure policy).

[24] Appeal (2003), An asset for the sake of peace and humanity - 10th anniversary the Chemical Weapons Ban, available at: http://www.cwc-support.org.

[25] Alexander Kelle, The First CWC Review Conference: taking stock and paving the way ahead, in "disarmament forum", ibid., p. 7.

[26] Adopted by the Signatory States to the Convention at the Signing Ceremony in Paris, 13-15 January 1993, reprinted in L. Tabassi, OPCW: The Legal Texts (1999) 523-534].

[27] Paragraph 29 of Article VIII of the Convention stipulates two-thirds majority of all its members for decisions on substance and simple majority for decisions an procedural matters

[28] See Krutzsch, Trapp, A Commentary on the Chemical Weapons Convention Martinus Nijhoff Publishers, 1994, Index, p.537.

[29] The measures under Art. VIII, paragraph 36 are: Inform all States Parties – bring the issue to the attention of the Conference – make recommendations to the Conference regarding measures to redress the situation and to ensure compliance (Article XII) – inform, in serious and urgent cases, the UN General Assembly and the UN Security Council.

[30] OPCW document C-8/DEC.16, dated 24 October 2003.

[31] Documented in The CBW Conventions Bulletin, issue 64, pp.12-13 .

[32] This is confirmed by Resolution 1540, paragraph 5.

[33] Nicolas Sims referred to the UK Chemical Weapons Act 1996: "Proponents of Section 37 were concerned to make it explicit, beyond argument, that government service could never be invoked as an excuse for contravening the Act. They insisted that government officials, including defence scientists and members of the armed forces, as well as the politicians to whom they are answerable, should be bound by exactly the same obligations as the rest of the population". He added: "This is a principle of comprehensiveness which ought to apply globally" and mentioned examples from Australia and Canada. Open Forum, ibid., p. 15.

[34] In his report of 3 Sept.1992 to the CD (CD/PV.635) on the agreed draft text of the CWC, the Chairman of the ad hoc Committee on Chemical Weapons read out the statement by the Australian representative on 6 August 1992, in which he stated :"They (members of the ‘Australia Group’) undertake to review, in the light of the implementation of the Convention, the measures that they take to prevent the spread of chemical substances and equipment for purposes contrary to the objectives of the Convention, with the aim of removing such measures for the benefit of States Parties to the Convention acting in full compliance with their obligations under the Convention.".

[35] Appeal (2003), An asset for the sake of peace and humanity - 10th anniversary the Chemical Weapons Ban, available at: http://www.cwc-support.org