COMPLIANCE MATTERS

Recent developments relating to compliance with multilateral treaties in the
area of disarmament and international security.

The newsletter of the Markland Group

Issue No. 17, August 2002

An abbreviated version of this newsletter was originally published as part of the Canadian Council on International Law Bulletin, Vol. 28, No. 1, Winter 2002. The expanded version that follows has been updated to 20 August 2002.

In this Issue:

I. Efforts to Strengthen Biological Weapons Convention in Limbo by Sean Howard

II. Chemical Weapons – Why No Challenge Inspections? – Two Possible Obstacles Considered by Douglas Scott

I. Efforts to Strengthen Biological Weapons Convention in Limbo

By Sean Howard*

Efforts to strengthen the Biological Weapons Convention (BWC) suffered a series of major setbacks in 2001, even as international concern over the proliferation and potential use of biological weapons by states or terrorist groups reached new heights. In July, the new US Administration announced it would no longer participate in the work of the ad hoc group (AHG) in Geneva negotiating a protocol equipping the Convention with real power to verify compliance and investigate alleged transgressions. In November, in the throes of the anthrax mailings in the US and elsewhere, President Bush released proposals aimed at bypassing the protocol and providing the UN Security Council with the power to conduct – and veto – investigations. The year ended with an unprecedented twelve-month suspension of the Convention’s Fifth Review Conference. On December 7, the final day of the three-week meeting in Geneva, the US moved that the work of the AHG be officially declared at an end and its mandate withdrawn. The proposal, which shocked even close US allies, dashed hopes of agreement on a Final Declaration establishing a follow-up process to focus discussion between the five-yearly Review Conferences. While the US is not opposed to such a process in principle, it was clearly determined that it should not become a means of reviving the AHG. To avoid the total collapse of the Review Conference, delegates agreed to resume deliberations in November 2002.

Although the United States figures in this thumbnail sketch as the sole villain of the peace, the reality is more complex and less convenient. Without sharing America’s sweeping view that any legally-binding verification instrument will inevitably be flawed and ineffectual, a large number of states parties harboured serious reservations about elements of the proposed protocol. For example, while some developed countries voiced suspicions of proposals to replace or dilute existing export control regimes, many developing countries identified the discriminatory nature of the current arrangements as a double-standard motivated more by considerations of commercial advantage than genuine proliferation concerns. Conversely, states with advanced biotechnology sectors and biodefence programmes – particularly but not exclusively the United States – worried that a protocol could impinge on legitimate business and military activity, potentially jeopardising commercial confidentiality and even national security.

The issue of biodefence encapsulates many of these differences in perception and priority. US media reports, surfacing in September and continuing into the new year, suggest that recent research by the US Army may have involved developing a new strain of weapons-grade anthrax. While biodefence programmes are permitted under the BWC, many would argue that the development of new strains of weapons-grade material, for whatever purpose, is prohibited, in part to prevent its diversion for malicious use – as may in fact have occurred with the anthrax mailings – and in part to prevent biodefence being used as a cover for offensive programmes. Whether or not the US stands in actual violation of the treaty, the speculation is bound to fuel suspicion that Washington ‘sabotaged’ the protocol because it had something to hide in the area of biodefence. For its part, while insisting it remains in full compliance, the US Administration argues that effective biodefence cannot be exposed to the full glare of inspections, or subjected to rigorous transparency requirements, as such openness would be of significant benefit to state or non-state actors hoping to use biological weapons against the US and its allies.

When the BWC Review Conference resumes, it will have to address in an intensive fashion this key question of the balance between prudent and dangerous research, between a secrecy that may act to undermine confidence in compliance and a level of accountability that may perversely encourage proliferation. For the Conference to rise to this formidable challenge, considerable prior consultation and coordination will be required. It is clear from recent statements that the US is planning to embark on a series of discussions aimed at persuading other states to back its unequivocal rejection of the protocol, and support instead an emphasis on ‘self-compliance’, broadly defined as rigorous domestic legislation supported by coordinated international law-enforcement and intelligence efforts, overlaid with the strong prospect of punitive action, including military attack, against proven violations.

It is vital for supporters of the protocol to respond with a diplomatic and political offensive of their own, exposing the serious ambiguities and weaknesses in the US stance. States parties can hardly be expected to agree that no multilateral verification mechanism is needed, or that the Security Council can adequately and fairly discharge the critical function of detecting non-compliance. But a willingness to respect and address the legitimate interest in biodefence, particularly on the part of states feeling vulnerable to potentially devastating attack, is a minimal first step toward reviving serious discussions aimed at bolstering the treaty. These discussions need not even include the US, at least initially. If during these discussions supporters of the basic concept of a protocol reached agreement on at least some minimal provisions, they would have the option of adopting a voluntary protocol or side agreement that would be binding on its signatories. The issue, after all, is not pleasing the US, but finding the right mix of incentives and disincentives, pressure and cooperation, to seriously dissuade states from contemplating the development of biological weapons. Even with the BWC in a formal state of suspended animation, the evolution of the international regime against biological weapons need not grind to a halt.

II. Chemical Weapons – Why No Challenge Inspections? – Two Possible Obstacles Considered

By Douglas Scott*

The version of this paper that was originally published as part of the Canadian Council on International Law Bulletin (Winter 2002) began with the following abstract:

Several authors have pointed to reports suggesting that there are secret caches of chemical weapons in Iran and possibly Sudan and have wondered why no country has filed a request for a challenge inspection. Among several reasons suggested for this reluctance is the fact that any information offered in support of the request as to the location of the secret cache is likely to have been obtained through intelligence sources, in which case, the country filing the request would likely be unwilling to reveal it.

This paper suggests that the answer to that problem may lie in a seldom-discussed provision in the Convention whereby that type of information could be kept within the Secretariat and not divulged to the States Parties. It is argued that Paragraph 59, Part X of the Verification Annex (which provides that certain information should be placed in an “Appendix” and kept within the Secretariat) could be interpreted as applying to information submitted in support of a request for a challenge inspection.

The now-revised version of the above article is based on further research and analysis which have led the author to conclude that the answer to the problem lies not in paragraph 59 but in certain decisions made in 1997 by the States Parties to the Chemical Weapons Convention (CWC). This article explores the effect of two decisions taken immediately after the Convention entered into force dealing with the nature of the information that might be expected to be supplied by the State Party requesting a challenge inspection in support of its request. In addition, the article discusses the ramifications of the absence of any provision for covering the cost of challenge inspection.

Jonathan Tucker is one of several authors who have alluded to those important provisions in the Convention that allow for short notice “challenge inspections” and have remarked that no such inspections have occurred since the Convention entered into force in April 1997. Professor Tucker finds this strange in view of the reports alleging that Iran continues to be involved in chemical weapons notwithstanding its ratification of the Convention in November 1997. Writing in Arms Control Today, he argues that “…the United States, for example, has asserted publicly that Iran continues to produce chemical weapons in violation of its treaty obligations… “and the US should therefore launch a challenge inspection without delay.[1] He goes on to argue that the longer the mechanism of challenge inspection remains unused, the harder it will be to bring it into play. Amy Sands expresses similar opinions in a chapter in The Chemical Weapons Convention – Implementation, Challenges and Solutions recently published by the Monterey Institute.[2]

Sudan’s involvement has been alleged in two recent articles, one by Michael Rubin in the Wall Street Journal[3] and the other by Daniel Benjamin and Steven Simon in the New York Review of Books.[4] Sudan acceded to the Convention on 24 May 1999.

These writers point to the provisions in the Convention that stipulate that any State Party is entitled to insist that a challenge inspection be conducted upon presentation of information as to non-compliant activities occurring at a designated location.[5] They allude to the provision whereby, once the request is submitted to the Director General of the OPCW,[6] he is required to proceed with the inspection unless the OPCW Executive Council votes by three-quarters majority to stop it.[7]

Having asked the question why no challenge inspections, the writers examine some possible answers. One of several answers proffered relates to the information that the requesting State would have to submit in order to qualify for a challenge inspection. It seems possible that the inspection request would be based on information from intelligence sources, in which case the requesting State Party would be reluctant to reveal it – out of concern for protecting its sources – and would therefore forego the inspection.

It might be argued (as was suggested in the original version of this article) that this problem could be resolved by reference to a provision in the Convention that could be construed as being intended to protect any information supplied by the requesting State in support of its inspection request that it considered to be sensitive. If the provision could be construed in this way, such information would remain with the Secretariat instead of being transmitted to the 41 members of the Executive Council. The provision in question, however, is not clearly worded and it could be given a totally different interpretation.

One thing is certain, however: before the true meaning of the clause could be accepted as being intended to offer a requesting State the opportunity to protect sensitive portions of its supporting information, a decision of the CSP to that effect would be necessary – an unlikely occurrence in the near future. In the meantime, States Parties contemplating a challenge inspection are left with no assurance that their sensitive supporting information will not be disseminated among the members of the Executive Council.

Nonetheless, despite the uncertainty as to whether sensitive supporting information can be protected by this provision, there is reason to believe that such protection is actually not needed. At its first session in 1997, the CSP adopted a decision laying out the format to be used for the various documents relating to challenge inspections – including the format for the inspection request.[8] This decision seems to indicate that a requesting State, when presenting its request and supplying information in support of its request, is not expected to supply information of the type that would be obtained through national intelligence operations. Even if such information appeared to be important for purposes of establishing reasonable grounds for suspicion of non-compliant activities, it seems that the CSP has decided that it need not be included as part of the supporting information in the inspection request.

The matter of supporting information is dealt with in the format specified for the inspection request (Format 1). The relevant item (which appears as item 4(c) on Format 1) is as follows:

All Appropriate Information on the Basis of Which the Concern has Arisen:___________

This wording repeats a portion of a clause in the Convention specifying the information required to be included in the inspection request.[9] The meaning placed on this phrase by the CSP is contained in a section of the decision entitled

Illustrative Examples of the Type of Information Which might Be Included Under “All Appropriate Information on the Basis of Which the Concern (of Possible non-Compliance) has Arisen” in the Context of Format 1[10]

The examples given are reproduced in full in the Annex.

The examples make it clear that, the requesting State is expected to provide considerable detail as to the nature of the suspected non-compliance, but there is no indication that any information is expected as to the basis upon which the suspicions are founded. Even in the case of the last example on the list, it appears that the only thing expected is a simple assertion to the effect that certain chemical signatures are emanating; there is no mention of information as to the basis for the assertion.

It seems safe to conclude that the CSP has decided that a request for a challenge inspection need not be supported by information of the type that would be obtained from national intelligence sources.

A requesting State may nonetheless feel that prudence would dictate that it provide at least some portions of its intelligence information – simply in the hope of avoiding trouble in the event that the challenge inspection were to reveal nothing in the way of non-compliant activity. In such event, the Convention requires the Executive Council to

address any concerns as to… whether the right to request a challenge inspection had been abused, [and] in the case of abuse… whether the requesting State Party should bear any of the financial implications of a challenge inspection.[11]

Indeed, it could be argued that the CSP, by virtue of another decision in 1997, has indicated that the absence of information of this type, properly authenticated and reliable, would give grounds to the Executive Council for deciding that there has been an abuse of the right to request a challenge inspection. The CSP decision in question adopts an

Illustrative List of Objective Indicators to Facilitate the Executive Council in Addressing any Concern, in Accordance with Paragraph 22 of Article IX, whether the right to request a challenge inspection has been abused. [The list includes the following item:] (b) Information relating to the inspected site available prior to the inspection request (the authenticity and reliability of any information would need to be carefully assessed).[12]

It is not altogether clear whether or not clause (b) is intended to include information obtained through national intelligence activities. Assuming such information is intended to be included, the effect of the decision seems to be that, although such information need not be included in the inspection request, if the challenge inspection yields little or nothing of significance, the requesting State might be wise to consider disseminating some of its sensitive supporting information to the members of the Executive Council, because otherwise the Council could conclude that it should make a finding of abuse. The requesting State might be especially concerned if it were shown that the inspected State Party had cooperated fully with the inspection. (Oddly enough, the degree of cooperation is not among the “objective indicators” listed in the above decision.) On the other hand, if there is a move among the members of the Executive Council to penalize the requesting state, it is questionable whether revealing some or all of the intelligence information would be of any avail.

In sum, a State Party contemplating a challenge inspection, if it is convinced that it has reliable evidence of non-compliance, should not be deterred by any concern about being required to reveal it – either before or after the inspection.

A more likely culprit standing as an obstacle to the launching of challenge inspections is the current lack of any provision for funding for such inspection.

The Convention does not require the requesting State to pay any part of the cost of a challenge inspection. On the contrary, the Convention clearly assumes that there will be no such liability – except (as noted above) where the Executive Council makes a finding of abuse and decides to exact a penalty. Although it is nowhere stated specifically in the Convention or in any of the decisions of the CSP, the implication is clear that the cost of the challenge inspection is to be borne by the OPCW out of funds supplied by the members.

Currently, the OPCW has no funds that can be used for the purpose of challenge inspections. In the budget for 2002, there is no specific fund set aside to cover the cost of any challenge inspections that may be requested during the year. Nor is there anything in the nature of a contingency fund that could be used for that purpose.[13] The OPCW is in serious financial difficulties[14] and is not in a position to borrow from other funds to finance a challenge inspection.

If a request were to be submitted today, it seems the Director General would have to respond by informing the requesting state that the Organization was not in a position to take immediate action. The drafters of the Convention seem to have anticipated this difficulty since this type of response is contemplated by the following provision in the Convention.

Before submitting the inspection request for a challenge inspection, the State Party may seek confirmation from the Director General that the Technical Secretariat is in a position to take immediate action on the request. If the Director General cannot provide such confirmation immediately, he shall do so at the earliest opportunity, in keeping with the order of requests for confirmation. He shall also keep the State Party informed of when it is likely that immediate action can be taken. Should the Director General reach the conclusion that timely action on requests can no longer be taken, he may ask the Executive Council to take appropriate action to improve the situation in the future.[15]

For all practical purposes, it appears that, due to the absence of any provision in the budget for the calendar year 2002, there is no possibility of any challenge inspections being launched before December 2002. The same was true for the year 2001. As of this writing, the Programme and Budget for 2003 has not been settled.

If future budgets continue to omit any provision for challenge inspections, one might wonder whether it would be possible for a State Party to obtain a challenge inspection by agreeing to pay the full cost. It appears that such an arrangement would be possible provided that the State Party was not insisting on reimbursement. (The Organization’s Financial Regulations would likely prohibit reimbursement.)[16]

It seems that, until the Conference includes an item for challenge inspections in the OPCW’s annual budget, the only way a challenge inspection could be conducted would be for a requesting State to pay the full cost in advance with no condition as to reimbursement. Such an arrangement, although apparently legal, would be contrary to the scheme laid down for challenge inspections according to which they are to be easily and immediately available without charge at the request of any State Party.×

* Sean Howard Ph.D. (University of Bradford) is the editor of Disarmament Diplomacy (www.acronym.org.uk) and Adjunct Professor in the Department of Politics, Government and Public Administration at the University College of Cape Breton. He lives in Louisbourg, Nova Scotia.

* Douglas Scott is a lawyer in Ancaster, Ontario. He is the President of the Markland Group.

[2] Jonathan Tucker, ed., Monterey Institute of International Studies, April 2001, p. 20.

[3] Don’t “Engage” Rogue Regimes, Wall Street Journal, 12 December 2001.

[4] A Failure of Intelligence, New York Review of Books, 20 December 2001.

[5] CWC, Article IX.8; CWC, Verification Annex, Part X, para. 4. The text of the Convention is available at www.opcw.org/cwcdoc.htm.

[6] Organization for the Prohibition of Chemical Weapons, which is responsible for administering the Convention.

[9] CWC, Verification Annex, Part X, para. 4(b).

[10] OPCW Document C.I/DEC.44, Annex, Section 3.

[13] “Programme and Budget and Working Capital Fund” for the year 2002: OPCW document C-VI/DEC.17, 19 May 2001, (143 pps.). OPCW officials, in conversation with the author, confirm that there is no item that could be used for covering the cost of a challenge inspection.

[14] See Markland Group Compliance Matters Issue No. 17, “OPCW Lacks Funds for Inspections”

[15] CWC, Verification Annex, Part X, para. 3.