Truth or Consequences #12: The C.W.C.’s Technology Transfer Provisions Will Exacerbate the Chemical Weapons Threat

(Washington, D.C.): Proponents of the
Chemical Weapons Convention (CWC) are
panicked: With the fate of this treaty
now clearly in Senate Majority Leader
Trent Lott’s hands, his declaration on
CNN last Sunday — to the effect that the
Convention’s provisions requiring
“the fullest possible exchange”
of technologies directly relevant to
chemical warfare represents a fatal flaw
that would have to be fixed — could be
the kiss-of-death for this controversial
accord.

In the face of growing evidence that
Senate concerns about the CWC’s
technology transfer provisions (known as
Articles X and XI) could result in the
treaty either having to be renegotiated
or scuttled, the Clinton Administration
and its surrogates have launched a public
relations blitz. This campaign seems
aimed at confusing the issue and
obscuring the clear danger posed by these
provisions, namely that they will
make the problem of chemical weapons
proliferation worse, not better.

The key arguments being made as part
of the disinformation campaign are to be
found in a publication recently released
by the Henry L. Stimson Center, entitled
“The CWC Critics’ Case Against
Articles X and XI: Nonsense.” In
fact, what does not make sense are the
arguments advanced by the CWC’s
proponents when subjected to close
scrutiny, reasoned analysis and, most
importantly, common sense:

The Fundamental Character
of Chemical Technology

The central problem is that most
advanced chemical manufacturing and
chemical defensive technologies are
inherently dual-use.

• The former can be applied to
  producing toxic chemicals for
  commercial purposes (e.g.,
  pesticides, fertilizers,
  pharmaceuticals, etc.) or toxic
  chemicals for chemical weapons.
  Depending upon the technology
  used, the change-over can be very
  rapid and virtually undetectable
  after the fact.
• The latter can be used to protect
  against the effects of another
  party’s chemical attacks or as an
  integral part of one’s own
  offensive chemical warfighting
  capabilities. It could, in
  addition, aid efforts to defeat
  Western protective equipment.
  Interestingly, former Desert
  Storm commander General
  Norman Schwarzkopf was
  surprised to learn, in the course
  of recent congressional
  testimony, that the CWC — which
  he has endorsed — would have
  such effects.

These realities make any commitment
on the part of the United States or other
advanced industrial nations to transfer
such technologies problematic. No matter
the intention behind providing chemical
manufacturing and defensive equipment and
know-how to potentially hostile states,
there is an inherent danger that the net
effect will be to enhance the chemical
threat posed by those nations.

The Plain Meaning of the
Words

This danger is intensified,
however, by the sweeping character of the
obligations contained in the Chemical
Weapons Convention. As the Stimson Center
paper notes, the words used in the two
Articles bearing on technology transfer
are modeled after the Nuclear
Non-Proliferation Treaty’s “Atoms
for Peace” provisions. What even the
Stimson Center now calls the CWC’s
“Poisons for Peace” sections
read as follows:

• Article 11:
  “…States parties
  shall…undertake to facilitate,
  and have the right to participate
  in, the fullest possible exchange
  of chemicals, equipment and
  scientific and technical
  information relating to
  the development and application
  of chemistry for purposes not
  prohibited under this
  Convention;” and

“[States parties
shall] not maintain among
themselves any restrictions,
including those in any
international agreements,
incompatible with the obligations
undertaken under this Convention,
which would restrict or impede
trade and the development and
promotion of scientific and
technological knowledge in the
field of chemistry for
industrial, agricultural,
research, medical, pharmaceutical
or other peaceful
purposes….”

• Article 10:
  “Every state party
  shall have the right to
  participate in the fullest
  possible exchange of equipment,
  material and scientific and
  technological information
  concerning means of protection
  against chemical weapons….Nothing
  in this Convention shall be
  interpreted as impeding the right
  of States Parties to request and
  provide assistance bilaterally
  and to conclude individual
  agreements with other States
  Parties concerning the emergency
  procurement of assistance.”

What These Articles Mean

Proponents of the CWC insist that the
plain meaning of these provisions is
countermanded by two provisions:

1) The overarching obligation in
Article I not “to assist, encourage
or induce, in any way, anyone to engage
in any activity prohibited to a State
Party under this convention.”
Unfortunately, the well-established
principle of legal construction is that the
specific (e.g., Articles X and XI)
governs the general (e.g., Article I).
The interest expressed in such an
interpretation by Iran, China, Cuba,
Pakistan and Brazil (among others)
suggests that at least some
countries will find it expedient, if not
obligatory, to seek transfers of dual-use
technologies pursuant to the former
provisions, even though doing so may
result in a violation of the latter
commitment. And

2) The language in Article XI
authorizing only transfers “for
purposes not prohibited under this
Convention.” Two points are in order
here: First, thanks to the dual-use
nature of the technologies in question,
it will not be necessary for any of the
parties to such transfers to acknowledge
that the purpose for which they are being
sold is one “prohibited under this
Convention.” Second, even if this
qualifying language were more
restrictive, it only appears in
Article XI. There is no similar
condition applied to the transfer of
defensive technology mandated by Article
X. Indeed, on a recent National Public
Radio program, the Executive Secretary of
the United Nations Commission for the
Prohibition of Chemical Weapons, Ian
Kenyon, affirmed his view that the CWC
obligates parties to transfer defensive
technologies to Iran — a nation widely
regarded as aggressively pursuing
offensive chemical warfighting
capabilities.

Don’t Blame Ronald Reagan href=”97-D56.html#N_1_”>⁽¹⁾

The CWC’s proponents attempt to allay
concerns about these provisions by
suggesting that they were contemplated by
President Reagan in the draft treaty he
endorsed. There are critical differences
between the language advanced by the
Reagan Administration in 1984 and that
which appears in the final draft. The
closest one comes to language like that
contained in Article XI in the Reagan
draft text is the following commitment:

“This Convention shall be
implemented in a manner designed
insofar as possible to avoid
hampering the economic or
technological activities of
Parties to the Convention or
international cooperation in the
field of peaceful chemical
activities including the
international exchange of toxic
chemicals and equipment for the
production, processing or use of
toxic chemicals for peaceful
purposes in accordance with the
provisions of the
Convention.”

Obviously, there is a profound —
and material — difference between an
undertaking “to avoid
hampering” “insofar as
possible” the exchange of toxic
chemicals and an obligation to
“engage in the fullest possible
exchange” of such chemicals and
related manufacturing technology.
References by the Stimson Center and
others to unagreed language in
the “rolling text” (circa 1988)
that more closely resembles the final
version of the CWC should not be confused
with an endorsement of such language by
Ronald Reagan or those who served in his
Administration (particularly those who
were driving forces behind his first and
early second term — most of whom are
sharply critical of the CWC — but who no
longer held high office by 1988).

Similarly,
the Reagan language concerning
“Assistance to Parties Endangered by
Chemical Weapons” was far different
from that contained in the CWC. The 1984
Reagan draft treaty merely said:
“Each Party undertakes, to the
extent it deems appropriate, to render
assistance to any Party to this
Convention that the Security Council of
the United States decides has been
exposed to danger as a result of a
violation of the Convention.” In
other words, the Reagan
Administration preserved the U.S. option
not only to withhold defensive
technologies should it choose to do so;
it also had leverage to preclude others
from doing so via the exercise of its
veto at the UN Security Council.
While the Clinton Administration has
maintained that it would be obliged under
Article X to do nothing more than
transfer medicines and antidotes to
countries like Iran, it certainly has no
veto comparable to that contemplated by
the Reagan text to prevent others from
doing much more.

Even If the U.S. Refuses to
Sell to Iran…

The Clinton Administration and other
advocates for the Chemical Weapons
Convention claim that, despite the
treaty’s requirements, the United States
will not transfer potentially dangerous
technology to nations like Iran. Much is
made of the fact that the U.S. will only
provide medicines and antidotes — not
the detection, protective or
decontamination equipment, etc. also
identified as “options for
assistance” under the treaty — to
such states and then only when the
prospective recipient has been attacked
or feels threatened by chemical weapons.
They also reject suggestions that
American companies will be allowed to
sell chemical manufacturing technologies.

Even if this were the case and the
United States maintains its embargo
against Iran’s Islamic Revolutionary
regime, Articles X and XI will
have the effect of undercutting America’s
efforts to contain Iran by legitimating
the transfer of dual-use technology to
Tehran. Despite assertions that
the Australia Group — a voluntary
chemical supplier group that currently
does not include Russia, China, Iran or
Cuba — will be unaffected by these
provisions, common sense suggests that
making such countries eligible for the
“fullest possible exchanges” of
chemical manufacturing technology, etc.
will complicate (if not undermine) the
work of this informal export control
mechanism.

What is more, one can safely predict
that the prospect of foreign competitors
closing such sales will cause would-be
American suppliers to seize upon Articles
X and XI to argue that Washington has
neither the right to penalize U.S. firms,
nor an interest in doing so. That sort of
pressure is evident in the lobbying for
the CWC being conducted by the Chemical
Manufacturers Association. This
trade association makes no bones about
its expectation that the treaty will
facilitate increased exports of its
member companies’ chemical products,
materials and technology — presumably
largely to countries to whom such
products cannot now be sold for national
security or foreign policy reasons. In
fact, in testimony before the Senate
Foreign Relations Committee last week,
CMA President Fred Webber acknowledged
that his organization had been one of the
champions of H.R. 361, legislation
adopted by the House of Representatives
last year that would have authorized
license-free U.S. trade in chemicals with
any Party to the CWC.

Needless to say, pressure to
permit the U.S. to compete in exports of
chemicals and manufacturing technology to
countries like Iran and Cuba will almost
surely weaken the American embargoes
against those countries as they apply to
non-chemical areas of trade and
investment, as well. This would
have the effect of undermining the
leverage this tool affords to weaken
those countries’ dangerous regimes. With
or without such American participation,
the net result is likely to be an
increased capability on the part of both
the Iranian and Castro regimes to
threaten the U.S., its allies and
interests with weapons of mass
destruction.

The Bottom Line

There are ample grounds for concern
that the Chemical Weapons Convention’s
“Poisons for Peace” provisions
will prove every bit as counterproductive
and damaging as have the Nuclear
Non-Proliferation Treaty’s “Atoms
for Peace” arrangements —
arrangements that have been employed as
cover for prohibited nuclear weapons
programs in Iran, Iraq, North Korea,
India, Pakistan, Argentina, Brazil and
Algeria, to name a few. Far from being
“nonsense,” warnings issued
about Articles X and XI are well-founded.
Only the most naïve and/or deluded
proponent of arms control or other,
similar world-order “solutions”
to intractable problems would dismiss as
“nonsense” warnings about
Articles X and XI issued by such sensible
people as former Defense Secretaries Dick
Cheney, Caspar Weinberger, Jim
Schlesinger and Donald Rumsfeld.

Senator Lott is right to express, as
he did last Sunday, his opposition to a
Chemical Weapons Convention that contains
Articles X and XI. Unless these
provisions of the CWC are deleted prior
to the U.S. becoming a state party,
American ratification of this Convention
would effectively make the United States
a party to exacerbating the
danger of chemical warfare.

– 30 –

1. See in this
regard Truth or Consequences
#4: No DNA Tests Needed to Show That
Claims About Republican Paternity of CWC
Are Overblown ( href=”index.jsp?section=papers&code=97-D_24″>No. 97-D 24, 10
February 1997).