How not to control chemical weapons

by Kathleen Bailey
The Washington Times, 29 April 1996

Biotechnology, pharmaceutical and chemical
companies beware! The U.S. Senate may soon ratify an
arms-control treaty whose verification provisions will
have have profound repercussions for companies which
depend on proprietary formulae and processes for their
competitive edge.

The treaty, called the Chemical Weapons Convention, is
intended to ban chemical weapons. It allows international
inspectors, under a process called challenge inspections,
to enter any facility in the United States or other party
to the treaty.

The inspectors may take and analyze samples, as well
as interview personnel and review pertinent records to
try to assure that there is no prohibited activity. All
facilities – not just chemical manufacturing sites – are
subject to challenge inspections because chemical weapons
are so easy to produce in small, nondescript locations.
Despite these intrusive measures, cheating is unlikely to
be detected, as Director of Central Intelligence John
Deutch has acknowledged.

Not only will the verification scheme not work, it
poses a genuine threat to U.S. industry. The danger is
that an inspector may observe or collect information for
reasons unrelated to treaty verification. What if a
knowledgeable inspector happens to notice critical
process information during a challenge visit to a
pharmaceutical firm? Will he keep the secret when he
returns home, even if offered incentives to share it? Or,
what if an industrial spy is placed as an inspector
visiting a U.S. biotechnology firm? Will anyone notice
the samples she clandestinely takes? Although the treaty
recognizes the need to protect proprietary information,
it will be exceedingly difficult to do.

Treaty proponents point out that there is a mechanism
for dealing with abusive or frivolous challenge
inspection requests. The treaty’s Executive Council may,
not later than 12 hours after receiving the inspection
request, decide by a three-quarters majority whether to
deny the request. The Executive Council is comprised of
41 members: nine African, nine Asian, five Eastern
European, seven Latin American and Caribbean, one shared
by Asia and Latin America and 10 from Western Europe and
others (the United States is an “other”). No
seat is reserved for any country, including the United
States, this even though the U.S. portion of the treaty’s
budget is 25 percent.

The odds of a U.S. company winning an appeal in such a
short time-frame with such an Executive Council is
probably low. Another option for a company objecting to a
senseless inspection is to turn to the U.S. Constitution,
whose Fourth Amendment guarantees against unwarranted
searches and seizures. The problem is that any court
challenge will probably follow an inspection. Proprietary
information may already have been lost by that time. If
this treaty presents such dangers to U.S. business
interests, why haven’t companies objected to it?

I decided to find out by calling a number of U.S.
pharmaceutical and biotechnology firms. None of the
companies had heard of the treaty. Similarly, I learned
that few chemical companies are aware of the treaty,
although they will bear the brunt of the requirements to
file production declarations and submit to routine as
well as challenge inspections. Nevertheless, the Chemical
Manufacturers Association and some chemical companies
advocate the treaty.

There are at least three reasons for this support. One
is that the chemical industry does not want to be on the
side of the devil. No U.S. firm wants to explain why it
opposes a ban on chemical weapons. It would be a public
relations nightmare.

A second reason is commercial. Some apparently believe
that the treaty will ease U.S. export controls on
chemicals by supplanting the Australia Group, a Western
cartel that limits exports of a wide range of chemicals.
The new treaty also requires export controls, but on a
smaller number of chemicals. U.S. officials say, however,
that the United States supports the continuation of the
Australia Group regardless. The chemical treaty thus is
not likely to bring export-control relief.

A third reason is the mistaken belief that not
ratifying the treaty will inhibit U.S. trade in
chemicals. The treaty does prohibit parties from
importing certain chemicals from nonparties. But the
restriction applies only to sales of highly dangerous
noncommercial chemicals usable in or as weapons-compounds
in which there is little or no trade by U.S. companies
anyway. Trade in common commercial chemicals would be
unaffected.

The treaty verification scheme will have serious
effects on U.S. businesses, yet won’t accomplish the
intended goal of catching cheating. American companies
should take a close look at the Chemical Weapons
Convention now. If they wish to object, they must act
quickly. The Senate Foreign Relations Committee voted out
the treaty on Thursday and the full Senate may soon
ratify it.