Truth or Consequences # 9: C.W.C. Proponents Dissemble About Treaty Arrangements Likely To Disserve U.S. Interests

(Washington, D.C.): In recent weeks, a
number of arguments have been advanced by
proponents of the controversial Chemical
Weapons Convention (CWC) to counter
concerns expressed by the treaty’s
critics. The more important of these have
been rebutted in previous papers in this href=”../../chemical.html”>Truth or
Consequences series . href=”97-D46.html#N_1_”>⁽¹⁾
Several of the advocates’ other
misrepresentations appear, by comparison,
to be relatively insignificant at this
moment. To the extent that these
statements encourage Senators to
underestimate the problems with this
Convention, however, it is important that
the facts be clearly established with
regard to these issues, as well.

Generically, the statements in
question fall in the category of
mechanics and other organizational
aspects of the institutional arrangements
established by the Chemical Weapons
Convention. Of particular concern are the
following points:

‘The Laugh Test’ — Ha!

In response to concerns that foreign
governments might abuse the CWC’s
intrusive inspection provisions to
acquire proprietary information from
American companies, treaty advocates have
claimed that the Convention provides a
mechanism for screening out any requests
for challenge inspections that are
frivolous or abusive. Some have called
this colloquially the “laugh
test”: They note that, as long as
three-quarters of the Executive Council
(excluding the requesting party and the
party to be inspected) of the
Organization for the Prohibition of
Chemical Weapons (OPCW) — the new UN
bureaucracy established in The Hague
pursuant to this treaty — determine that
an inspection is frivolous, the
inspection can be foreclosed.

In practice, though, it is hard to see
how this “laugh test” will be
able to protect American companies,
including many that have nothing to do
with the manufacture of chemicals — to
say nothing of any involvement in the
production of chemical weapons. href=”97-D46.html#N_2_”>⁽²⁾
After all, under the Chemical Weapons
Convention, the following factors will be
at work:

No Timely Basis for Declaring
an Inspection Frivolous:
According to the CWC’s Article IX,
paragraph 17, the OPCW’s Executive
Council will have just 12 hours
after receipt of an inspection request to
determine whether it is a frivolous or
abusive one. Making such a determination
will be problematic, however, since there
is no requirement at that juncture for
the challenging state party to identify
the company or site to be inspected.

The nation requesting the challenge
inspection is initially required only to
identify the country in which the site is
located, the port of entry to be used by
inspectors and the nature of the concern
as it relates to the treaty (Part X,
Section B, paragraph 4). In fact, the
challenging party does not have to name
the exact site to be inspected until
12 hours before inspectors are to arrive
at the point of entry (Part X, Section B,
paragraph 6). This will be well after
the time by which a ruling on frivolity
must have been rendered.

No Opportunity to Object:
There will, as a practical matter, be no
way for a country (or one of its
companies) to object that an inspection
is frivolous. Not only will they not know
of the precise inspection request in time
to appeal to the Executive Council for
relief but — in the unlikely event that
they do learn of the location to
be inspected prior to the Executive
Council’s timeframe for acting — the
party to be inspected is precluded by the
treaty from participating in Council
deliberations on the frivolousness of the
request (Article X, paragraph 17).

Little Chance of Prevailing in
the Executive Council: Even if
the United States had the requisite
information to argue that a challenge
inspection would be frivolous or abusive
and was in a position to make that
argument before the Executive Council,
the composition of that body makes it
unlikely that American objections would
be respected by three-quarters of the
members. In standard U.N. style, the 41
seats (held for two-year terms) are
apportioned regionally: 9 African
nations, 9 Asian, 7 Latin American and
Caribbean, 5 Eastern European, 1 rotating
between Asian or Latin and Caribbean
nations and 10 Western European or
“other” nations (the United
States is an “other” nation for
the purposes of the CWC).

The United States has neither a
guaranteed seat on the Council nor a veto.
If standard UN practice applies,
Washington will find it hard to muster a
majority — let alone a super-majority
of three-quarters of the membership — in
support of its positions. What is more,
the U.S. government will almost certainly
be disinclined to object to inspections
of any but the most patently sensitive
government installations on the grounds
that doing so will create precedents and
otherwise facilitate foreign efforts to
impede valid inspections.

‘No Go’ on Adding Chemicals
to the Schedules

In the wake of revelations that Russia
has been covertly developing new classes
of extremely toxic chemical weapons using
ingredients deliberately left off the
CWC’s Schedules of Chemicals, treaty
proponents have claimed that such
chemicals could easily be added to the
list. Unfortunately, such statements
ignore two inconvenient facts:

Revealing Formulas for
Chemical Weapons May Do More Harm
than Good: In the event the
United States learns the composition of a
novel chemical agent — such as the
Russian A-232 nerve agent — it is highly
unlikely that the U.S. would seek to add
these chemicals (or their precursors) to
the Annex on Chemicals. After all, adding
these compounds to the Annex means making
public the chemical structure of the
agent, thereby undermining efforts to
limit the spread of chemical weapons
expertise and knowledge, especially to
rogue states. Since U.S. intelligence has
low confidence in its ability under the
CWC to detect illicit Novichok-related
activities in Russia (assuming Russia
ultimately decides to ratify the treaty)
the costs of adding A-232 to the Annex on
Chemicals — measured in terms of
abetting chemical weapons proliferation
— far outweigh any potential benefits.

Impediments to Adding
Chemicals to the CWC’s Schedules: Even
if the United States should wish to add
an agent or precursor to the Chemical
Weapons Convention’s schedule, the
process is not the simple undertaking
that proponents have led the public to
believe. To the contrary, it is a long
and complicated one.

For one thing, modifications to the
Annex on Chemicals are not treated as
formal “amendments” to the
Convention. “Changes” to the
Annex on Chemicals, including additions
of new chemicals to the schedules, are
treated as administrative or technical
in nature. Consequently, special
provisions and procedures apply (Article
XV, paragraph 4): Any state party may
propose a change to the Annex on
Chemicals. The proposal is then sent to
the Director-General, who forwards it to
states parties and the Executive Council
(Article XV, paragraph 5(a)).

Within 90 days of receipt, the
Executive Council makes a recommendation
to states parties on whether to accept or
reject the proposal. The decision
requires a simple majority of the
Executive Council (Article XV, paragraph
5(c)). If the Council recommends that the
proposal be adopted, it shall be
considered approved unless a
state party objects within 90 days,
and the changes will enter into force 180
days after formal notification of its
acceptance by State Parties (Article XV,
paragraph 5(d) & (g)). If a state
party objects, a decision on the proposal
will be taken as “a matter of
substance” by the Conference of
State Parties at its next session
(Article XV, paragraph 5(c)).

Conferences are only held on an annual
basis, however. Even then, as the treaty
puts it, decisions taken in such
Conferences on “matters of substance
should be taken as far as possible by
consensus.” If consensus is not
possible, the Conference shall take a
decision by a two-thirds majority of
members present and voting (Article VIII,
paragraph 18). Currently, this would
entail garnering the support of 51 out of
70 state parties to the Convention.

To make this process less abstract,
assume that the United States government
(a) knows the composition of a new
chemical weapons agent (or precursor) and
(b) has reached inter-agency agreement to
seek inclusion of the compounds in the
Annex on Chemicals — possibly over
the objection of the Chemical
Manufacturers Association. The
following is a scenario describing what
would be entailed in effecting such a
change:

• C-Day: The United States proposes
  the change to the OPCW’s
  Director-General;
• C + 3 months: The Executive
  Council recommends acceptance of
  the U.S. proposal;
• C + 6 months: Russia, for
  example, objects.
• C + 6-to-18 months: An annual
  Conference is held to address,
  among other things, the proposed
  change. The United States musters
  the two-thirds votes necessary.
• C + 12-to-24 months: Change
  becomes effective — up to
  two years after the initial
  request.
• Alternatively, if the United
  States cannot enlist two-thirds
  of the states parties, the change
  will not be adopted.

It is important to note that, even if
the CWC’s proponents were correct in
their representations that it will be
easy to add chemicals to the treaty’s
Schedules, it is not clear that U.S.
interests would be served by that
arrangement, either. After all, addition
of chemicals to Schedules 1 or 2, or
relocation from Schedule 3 to Schedule 2
over Washington’s objections could
impinge significantly on the reporting
and inspection burden imposed on U.S.
companies and on American chemical export
opportunities. In theory at least,
changes in the Schedules could broaden
the treaty’s scope so as to cover
hundreds, possibly thousands, of
additional companies. The Senate would
have no say over such changes — even if
they were to have the effect of
significantly altering the CWC’s costs.

House of Cards

The Chemical Weapons Convention
requires states parties to declare
whether they have chemical weapons and
where they were produced within 30
days after the treaty enters into force.
Since the preponderance of the
CWC’s reporting, regulatory and
inspection arrangements hinge on voluntary
declarations, unwillingness of parties to
provide full and accurate reports of
their capabilities will significantly
diminish even the putative value of this
Convention.

Of the countries that have so far
ratified the Chemical Weapons Convention,
not one has publicly affirmed that it has
chemical weapons. While they will
not be obliged to make a formal
declaration until May 29^th,
the fact that not even India — which is
widely believed to have chemical warfare
capabilities — has intimated that it is
a CW state bodes ill for the candidness
of future disclosures. What is
more, there is no reason to believe that
China, Iran, Pakistan or other states
judged to have active chemical warfare
programs will acknowledge that reality.
Even Russia, which has, under the
now-moribund U.S.-Russian Bilateral
Destruction Agreement, affirmed that it
is a chemical weapons state, has
consistently understated and otherwise
misrepresented the nature and size of its
chemical arsenal.

It will only be possible to
calibrate the gravity of this problem
thirty-days after entry into force (or
after countries like Russia, China and
Iran) deposit their instruments of
ratification. The United States
would be well-advised to wait until that
point to become a state party.

The Bottom Line

While these issues may appear
relatively minor compared with the
Chemical Weapons Convention’s other major
defects — notably, the United
States’ inability to monitor compliance
with the treaty with even moderate
confidence; its prospective costs in
terms of Americans’ constitutional rights
and their businesses’ proprietary
information; and the danger that the
CWC’s Articles X and XI will actually
exacerbate the chemical warfare threat
while the treaty’s placebo effect
diminishes U.S. preparedness to deal with
that threat. Still, the truth
about these “mechanical”
aspects of the treaty once again belie
assurances provided by the CWC’s
proponents and further compound the
down-sides associated with U.S.
ratification of the present Convention.

– 30 –

1. To obtain
copies of these papers, please contact
the Center at 202-835-9077.

2. See Truth
or Consequences #5: The CWC Will Not
Be Good for Business — To Say
Nothing of the National Interest
(No. 97-D 27,
17 February 1997) for more information
about the number and kinds of companies
likely to fall under the purview of the
CWC’s reporting, regulatory and
inspection regime.