The final report of the 7th Review Conference of the Biological and Toxin Weapons Convention (BTWC) held in December 2011 contained a one-line subparagraph whose ambition came to fruition in December 2019. Under Article IV (on national implementation measures), paragraph 13 opened as follows:
The Conference notes the value of national implementation measures, as appropriate, in accordance with the constitutional process of each State Party, to:
(a) implement voluntary management standards on biosafety and biosecurity;
That single line of new language in the final report was the outcome of a preparatory process that had begun in September 2009 and led to a Belgian Review Conference working paper endorsed by the European Union (EU). Prompted by the final report’s language, the International Organisation for Standards (ISO) initiated the complex procedure for developing a new standard. Just over seven years after the 7th Review Conference, it published the new standard, ISO 35001:2019 Biorisk management for laboratories and other related organisations.
Today, amid the global pandemic caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), questions about the virus’s origins abound. Might it have escaped from a high-containment laboratory? Did the epidemic result from a deliberate release? While we can source most of these claims to conspiracy theorists and wilful disinformation propagators, the clampdown of Chinese bureaucracy on early outbreak reports, the government’s failure to immediately report the emerging epidemic to the World Health Organisation (WHO), and its subsequent extreme vetting of any scientific publication discussing COVID-19’s origins created the space for the wildest stories to flourish.
Interesting in this respect is whether the new ISO standard offers opportunities to reinforce the BTWC. In preparation for the 2020 BTWC Meetings of Experts (MX), to be held exceptionally in December instead of the late summer due to COVID-19 meeting restrictions at the United Nations, Belgium with Austria. Chile, France, Germany, Iraq, Ireland, Netherlands, Spain and Thailand submitted a working paper entitled ‘Biorisk management standards and their role in BTWC implementation’ (BWC/MSP/2020/MX.2/WP.2, 27 October2020).
Early genesis of a small success
September 2009. I was a disarmament researcher at the Paris-based European Union Institute for Security Studies (EU-ISS). The 7th BTWC Review Conference was just over two years away. I met with an acquaintance from my days at the Stockholm International Peace Research Institute (SIPRI) and a senior official at the Foreign Ministry in Brussels. I had a straightforward question for them. Belgium would hold the 6-monthly rotating Presidency of the European Council during the second half of 2010. A year before the Review Conference, this was the ideal time to update the EU Common Position for the quinquennial meeting.
Holding the Presidency offers plenty of opportunities for initiative. In 2009 EU members had no specific plans to update their common position. The 6th Review Conference they considered a success (which was relative considering the disaster five years earlier). Three months after the meeting in Brussels, the Belgian Foreign Ministry decided to seek an updated EU position. Preparations already began under the Swedish Presidency during the first half of 2010.
The idea I had put forward in Brussels was maximalist: how to equip the BTWC with verification tools? I was not seeking to reopen the Ad Hoc Group (AHG) negotiations the United States had aborted in 2001 because by the turn of the century I had already come to the conclusion that the tools under consideration in Geneva addressed past problems and not the most recent developments in biology and biotechnology. Many academics observing the AHG deliberations recognised the shortcomings of the draft text but pushed for completing the draft protocol to the BTWC, fearing that the proceedings were losing momentum. However, their argument that the protocol could be amended afterwards I did not share. In my mind, a return to the design board was the only option.
On the way to a national and common EU position
On 18 May 2010, during the Swedish Presidency, the EU Council’s Working Party on Global Disarmament and Arms Control (CODUN) invited me to present my thoughts on how to strengthen the BTWC. CODUN coordinated the EU’s Common Foreign and Security Policy regarding global disarmament and UN-related issues, which included the BTWC. (CODUN has since then been absorbed into the Working Party on Non-proliferation – CONOP.) In the EU-ISS note prepared for the briefing I identified five areas of possible progress on verification-related questions: (1) industry verification; (2) biodefence programmes; (3) technology transfers; (4) allegations of BW use and unusual outbreaks of disease; and (5) countering BW threats posed by terrorist and criminal entities. I added the following caveat:
Under the present circumstances it does not appear feasible to consider the five areas in a single, holistic model for a future BTWC. New, non-state actors have risen to prominence in the disarmament debate (the industry, scientific and professional communities, but also terrorist and criminal entities). There are different challenges posed by rapid advances in science, technology and processes that may contribute to BW acquisition, the major changes in the international security environment over the past three decades (and since the 9/11 attacks and the invasion of Iraq in particular) and the resulting changes in security expectations from weapon control treaties and their verification tools.
The main aim for the EU, I suggested, was to
obtain a decision at the 7th Review Conference establishing one or more working groups to explore and identify novel approaches to verifying the BTWC. These working groups are to meet several times during the next intersessional period and report to the 8th Review Conference in 2016, at which point States Parties may decide to act on the findings.
Critical elements in the deliberations will be: (1) the building and application of the principle of multi-stakeholdership, with direct participation of the industrial and scientific communities; (2) the identification of processes and technologies to support the verification goals, and, where required, to identify such processes and technologies that need to be created and developed based on the latest scientific and technological advances, e.g., in detection or biological forensics; and (3) for the EU, to actively support the process by taking the lead in testing the proposed verification methodologies in realistic settings with a view of both ascertaining their feasibleness and finetuning the proposals.
The latter element was critical for deliberations to move from the conceptual to the practical. In a footnote, I clarified:
This aspect is particularly important with respect to the design and implementation of novel verification principles, techniques and technologies. For example, before the signing of the 1987 Treaty on the Intermediate-Range Nuclear Forces (INF) the United States and the Soviet Union had conducted over 400 trial inspections. The goals of those trials included the testing of the concept of onsite inspection, the finetuning of verification requirements and the investigation of ways in which sensitive information could be protected without undermining the stated verification goals.
The remainder of the note addressed the five issue areas. The document ended with a separate section on stakeholders and their involvement in verification, which included arguments to have industry and the scientific communities engaged in the preparatory processes.
Sharpening the focus
After that intervention, I continued to interact with the Belgian Foreign Ministry regarding the RevCon preparations. Early in June, less than one month before Belgium was to take over the rotating Presidency from Sweden, the Foreign Ministry convened a seminar with representatives from different ministries and agencies, national stakeholders and a few international experts. Participants discussed a full spectrum of issues affecting the BTWC at the time: verification, industry involvement in the discussions, biosecurity and safety, science and technology, etc. The seminar’s purpose was to combine desired options with feasible outcomes, ‘feasibility’ meaning first gaining consensus for the proposal among the 28 EU members and then adoption of language by the BTWC states parties at the 7th Review Conference.
During the second intersessional process between the 6th and 7th Review Conferences (2007–10), topics such as biosecurity and -safety, science oversight, codes of conduct, pathogen regulation, etc. featured prominently on the agenda. One year later, in June 2011, the Belgian Foreign Ministry organised its second seminar in preparation of the 7th Review Conference. Its topic caused little surprise: The Biological Weapons Convention, Biosecurity and the Industry. One of the seminar’s central themes was to investigate how the life sciences industry – one core stakeholder remaining in the background of the discussions on the future of the BTWC – could become more involved. Speakers zoomed in on industrial standards for biosafety and biosecurity being developed for laboratories in research and industry facilities as a possible point of entry. In follow up to the seminar, the idea arose to explore this lesser-known opportunity in more detail and highlight its possibilities and limitations from three perspectives: biorisk management, industry practice and government responsibility in formal disarmament. Ambassador Paul van den IJssel, President-Designate of the 7th BTWC Review Conference, closed the event.
One advantage of homing in on biorisk management (the term ‘biorisk’ reflects the common all hazards approach) was precedent. The European Committee for Standardisation (CEN, after its French name: Comité européen de normalisation) had adopted a CEN Workshop Agreement (CWA) on Laboratory biorisk management standard in February 2008, known as CWA 15793:2008. (The standard was updated in September 2011 as CWA 15793:2011.) As Gary Burns and Toon De Kesel explained at the seminar:
The most obvious benefits for organisations implementing CWA 15793 include improved biosafety and biosecurity performance ensuring protection for employees and the wider community, as well as preventing loss, theft, and misuse of biological materials with dual-use potential. Compliance with the standard furthermore avoids direct financial costs associated with business interruption, ensures conformity with legal requirements and helps to avert penalties or litigation. An additional, yet significant benefit concerns the preservation of an organisation’s reputation. An organisation that obtained formal certification as meeting the requirements of the CWA may be able to negotiate lower insurance premiums and reduce the number of interventions by regulators. Conformity also helps to promote the exchange of materials and expansion of research collaboration, as the CWA assures that receiving/collaborating organisations can handle hazardous materials safely and securely. It also improves prospects when bidding for contracts or research funding. […]
Relevant institutions thus have an interest in obtaining certification under an international standard. Burns and De Kesel further explored a standard such as CWA 15793 could contribute to providing increased assurance under the BTWC, provided modifications were implemented. They argued in favour of transforming the CWA into an ISO standard, which could also include health and safety and be translated into more languages thereby benefiting global application.
The concrete proposal
In paragraph 9 of its working paper entitled ‘Biorisk management standards and their role in BTWC implementation’ (BWC/CONF.VII/WP.7, 14 October 2011) Belgium called on the Review Conference to:
(a) Recognise that biorisk management standards, created by stakeholders in the life sciences community, can play a complementary and supportive role in the implementation of the obligations of the BTWC;
(b) Call on the life sciences community and international standards organisations to develop global and certifiable biorisk management standards;
(c) Encourage states parties to provide assistance, where appropriate, for the implementation of biorisk management standards in life science institutions in accordance with Article X;
(d) Take biorisk management standards and their role for BTWC implementation up as an intersessional topic and enter into dialogue with representatives from biosafety associations, the life sciences industry and international standards organisations on the development of new standards, and review of existing standards, in order to enhance their leverage towards the implementation of the BTWC.
The next paragraph also clarified that industrial standards are not a governmental affair and that therefore states cannot and will not control their development and implementation. In addition, adoption of such standards will not ‘dismiss states from their primordial responsibility for security and the obligation to implement the BTWC by making laws and enforcing them’.
A minor incident occurred when a member of the German delegation was the first to take to the floor in the question and answer session after the formal plenary presentation of the working paper to express his country’s opposition to the proposal. Belgium quickly shut down the challenge by pointing out that the proposal was part of the EU Common Position for the Review Conference adopted by Germany and the 27 other EU members. A few BTWC parties sought some additional clarification about the motives and purpose of the biosafety and -security management standards.
Nobody formally opposed the idea.
Towards the 9th Review Conference (2021)
Following the publication of ISO 35001:2019 on Biorisk management for laboratories and other related organisations, Belgium returns to promoting the standard in the BTWC context. The document notes in paragraph 7:
This development within the life sciences industry strengthens the international capacity to reach the goals of the BTWC in several ways:
(a) it provides a tool for awareness raising in the scientific community regarding the risks related to biological dual-use items;
(b) it reduces the risk of unauthorised access to biological agents and materials;
(c) it provides an increased level of assurance that life science institutions are complying with the prohibitions and obligations of the BTWC;
(d) it guarantees responsible biorisk management in certified facilities, even in cases where national legislation and regulation fall short of requirements;
(e) it can facilitate international transactions relevant for Article X assistance;
(f) it will enhance responsible research of hazardous biological materials, including engineered and synthetically derived materials.
The working paper also refers cautiously to the current global pandemic when it says:
SARS, pandemic viruses and threats of the malicious use of pathogens illustrate the risks that biological agents and materials pose and the need to reinforce safety and security precautions. The productive results of the auto-regulatory initiatives of the life sciences community offer the opportunity to increase safety and security and thus can ameliorate the implementation of the BTWC.
To a degree the working paper could complement the idea launched by Kazakh President Kassym-Jomart Tokayev in his address to the UN General Assembly on 23 September to have an International Agency for Biological Safety linked to the BTWC. As I pointed out in an earlier blog posting, this idea still requires further development. However, the shared interest of Belgium and Kazakhstan in biorisk management in the context of the disarmament treaty is clear.
Thinking back on the little role I played in these developments – essentially contacting the Belgian Foreign Ministry about whether it was planning to update the EU Common Position in preparation of the 7th Review Conference – gives me pleasure. The meeting in September 2009 started the process that eventually led to an ISO standard, which, if embraced by states parties, could evolve into significant building block in the provision of assurance in the BTWC context.
I never expected an ISO standard as an outcome. This may be surprising in hindsight. Having switched SIPRI for the Geneva-based BioWeapons Prevention Project (BWPP) in August 2003, I returned to Stockholm in December for a joint BWPP-SIPRI seminar sponsored by the Swedish Foreign Ministry. Participants included representatives from the Swedish Defence and Trade Ministries, customs, biotechnology industry and the life sciences. A couple of international academic experts attended too. There I presented the first outline of a possible novel transparency-enhancing system. The Weapons of Mass Destruction Commission (more commonly known as the Blix Commission) published the ideas as ‘A Verification and Transparency Concept for Technology Transfers under the BTWC’ in February 2005. An interesting detail: the text already cited the ISO as a source of inspiration and suggested using BTWC Article X as a means to assist states parties with meeting the standards to make the transparency-enhancing system function.
After the adoption of the final report of the 7th Review Conference, my colleague at the Belgian Foreign Ministry asked me whether I was not disappointed that only a reference to biorisk management standards ended up in the document. I had approached him two years earlier with a much broader verification idea. I assured him this was not the case. In BTWC politics, diplomacy is after all the art of the feasible. The global biorisk management standard had a chance in 2011 and has become a reality today.
Is verification off my table? Hell, no! But that will be the subject of a future story.
This year the UN General Assembly (UNGA) celebrates the 75th time in session. However, the worldwide spread of the Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) casts dark shadow over the anniversary with some of the major global players preferring to play geopolitics when nations should unite to combat a germ that knows no borders.
Unsurprisingly, many heads of state or government, ministers and other dignitaries have reflected in their statements on the pandemic and the challenges ahead. Some introduced constructive suggestions to address the factors that led to the outbreak at the end of last year. Others put forward ideas to strengthen crisis response and management capacities.
‘establish a special multilateral body – the International Agency for Biological Safety – based on the 1972 Biological Weapons Convention and accountable to the UN Security Council’.
His reference to the Biological and Toxin Weapons Convention (BTWC) in the broader context of public health is noteworthy. It was one of five ideas to combat the pandemic, the other four being the upgrading of national health institutions; the removal of politics out of the vaccine; the revision of the International Health Regulations to increase capacities of the World Health Organisation (WHO); and the examination of the idea of a network of Regional Centres for Disease Control and Biosafety under the UN auspices.
Given the many accusations that the virus is human-made, escaped from a laboratory or was part of a biological weapon (BW) programme and the ease with which disinformation circulates through the social media, an initiative that relies on the BTWC makes sense. After all, the convention deals with questions of non-compliance or accusations of biological warfare.
What does the proposal entail?
No further details about the International Agency for Biological Safety (IABS) are available from Kazakh missions. This leaves us with few clues about its purpose, structure and way of functioning.
As an ‘agency’, the IABS would presumably be department or administrative unit of a bigger entity. Because it would be accountable to the UN Security Council (UNSC) Kazakhstan probably envisages it as a UN subsidiary body. In one sense, the organ could be a relatively autonomous structure (e.g. under a Commissioner-General) set up by the UNGA. However, the sole reference to the UNSC appears at odds with a UNGA subsidiary body.
However, the characterisation of the body as ‘multilateral’ indicates that states – whether parties to the BTWC or UN members is unspecified – might govern the agency rather than a bureaucratic entity such as the UN. In this understanding, the reference might be to a UN specialised agency (an autonomous organisation integrated by agreement into the UN system, e.g. the WHO) or a related organisation that by agreement reports to the UNGA and UNSC, similar to the International Atomic Energy Agency and the Organisation for the Prohibition of Chemical Weapons. This interpretation, however, does not sit well with ‘ accountability’ to the UNSC and lack of reference to the UNGA.
The organ is about biological safety, therefore presumably about handling dangerous pathogens. If the Kazakh language does not differentiate between ‘biosafety’ and ‘biosecurity’ (Google Translate renders both terms as ‘биоқауіпсіздік’ [bïoqawipsizdik]), then preventing pathogens from escaping high-containment facilities may also fall within the agency’s purview.
Finally, the BTWC reference suggests that the agency would address questions not usually within the remit of the WHO, i.e. research and development that may lead to BW or biodefence programmes.
How about the IABS in the BTWC context?
According to the Kazakh proposal the IABS should be based on the BTWC. The preposition ‘on’ could mean that the scope of its mandate equals that of the disarmament treaty or that it should work supporting BTWC objectives.
As is well known, the BTWC has no formal institutional setup in which the body might be integrated. Yet is it too wild an idea to link it to the Implementation Support Unit (ISU)? Even while ownership of the treaty lies with the states parties, they have embedded the ISU within the UN Office for Disarmament Affairs (UNODA). In that option, the IABS might meet the twin criteria of being an agency and multilateral put forward by Kazakhstan.
However, the ISU is not a formal administrative entity within UNODA or the UN. Its continued existence depends on the BTWC states parties, who must renew its mandate and adopt a budget for the next five years at review conferences. For the IABS they would thus also have to decide on staffing levels and a budget based on a pre-agreed mandate. Similar types of consideration await proposals to establish a scientific advisory body for the BTWC. Therefore, for the IABS an additional key decision will be whether it becomes part of the ISU or functions separately within UNODA.
How could IABS support the BTWC objectives?
There is little purpose in debating possible structures without a sense of possible IABS roles. The IABS may conceivably support the BTWC objectives in two areas, namely regarding confidence building measures (CBMs) and Article VII on emergency assistance.
Enhancement of CBM utility
Because of the presentation of the proposal in the context of the pandemic, the IABS could focus on CBM B ‘Exchange of information on outbreaks of infectious diseases and similar occurrences caused by toxins’.
CBMs are submitted annually with a formal deadline on 15 April. Consequently, outbreaks cover the past year, and the process does not inform states parties at when the incident occurs. Moreover, the process is passive. States parties receive the information in at least one of the six official UN languages but many lack the resources to translate the documents or the capacity to analyse them in depth.
A process can be envisaged whereby states parties submit to the IABS when possible details of a unusual disease outbreaks with additional information as to whether this unusual outbreak is natural, accidental or believed to be deliberate. A state party could conceivably notify the agency of any outbreak about which it has information. The IABS processes this information and provides it to all states parties within the shortest possible delays. Any state party can follow up through bilateral consultations or may offer specific types of assistance to address the outbreak. Another advantage of such a process would be the early squashing of conspiracy theories.
One could envisage that the IABS also acts as an interface for CBM A, Parts 1 and 2, respectively on ‘Exchange of data on research centres and laboratories’ and ‘Exchange of information on national biological defence research and development programmes’. As noted earlier, biosafety and -security would be at the heart of the agency.
In this way, a passive CBM process could be elevated to an active assurance strategy whereby states parties commit themselves to be transparent about unusual disease outbreaks. Failure to report or late reporting of such an outbreak or accident could give other states parties cause to seek clarification, more so as it not usually possible to hide such an event.
While cooperation with the WHO and other international health organisations for human, animal and plant diseases would most likely emerge, the principal focus of the IABS would be defined by the BTWC: prevention of BWs and their use.
Focal point for Article VII
In view of the possible roles outlined above, it seems a natural next step to envisage the IABS as a focal point for requesting emergency assistance under Article VII if a state party has been exposed to a danger because of a violation of the BTWC.
There is no procedure foreseen for a state wishing to invoke the provision. Tabletop exercises run between 2016 and 2019 have shown that participants hesitate to activate the article. Such a step automatically implies a violation of the BTWC and may escalate a conflict. Furthermore, there are questions about what type of evidence the requesting state party must supply and the role of the other states parties in the process given the involvement of the UNSC. In addition, the outbreak will be noted a while before first suspicions of deliberate intent arise.
As the IABS would have been informed of the outbreak early on, a state party believing it has been exposed to a danger resulting from a breach of the BTWC could submit its evidence for further consideration. Clarification processes may alleviate concerns or give cause to forward the matter to the UNSC. In any case, having an agency such as the IABS would hand states parties a tool and an opportunity to be seized by the matter without having to set up a lengthy preparatory process for consultations under BTWC Article V.
For sure, some further elaboration of the IABS idea by the Kazakh government would be great, e.g. in a working paper for the BTWC meeting of experts in December (having been postponed as a consequences of the pandemic) or the review conference next year.
Kazakhstan should also clarify its understanding of the phrase ‘accountable to the UN Security Council’. In several articles the BTWC refers to roles to be played by the UNSC. However, these are often seen as an impediment to activating the relevant provision because decisions or actions by the UNSC are unpredictable in their outcome.
Notwithstanding, the Kazakh proposal already tantalises as it is. As an agency it might fulfil useful tasks at relatively small cost in areas of concern to states parties. The discussion, if not accusations about the origins of SARS-CoV-2 show that something substantive is lacking in the international security machinery to generate transparency and confidence in the accuracy of information.
Article VII of the Biological and Toxin Weapons Convention (BTWC) belongs to the more obscure provisions. It reads as follows:
Each State Party to this Convention undertakes to provide or support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests, if the Security Council decides that such Party has been exposed to danger as a result of violation of the Convention.
Since the treaty’s entry into force in 1975, states parties hardly looked at the one-paragraph article. Up to the 7th Review Conference (2011) the only additional understandings and agreements concerned general implementation procedures and possible roles of appropriate international organisations, including the World Health Organisation (WHO), the World Organisation for Animal Health (OIE) and the Food and Agricultural Organisation (FAO), as well as coordination functions for the United Nations (UN). Attention to the article increased markedly at the 7th Review Conference, a consequence of a heightened perceived worldwide risk from emerging and re-emerging diseases, fears of outbreaks resulting from biosecurity and -safety lapses in high-containment laboratories, concerns about scientific and technological advances in the life sciences that could be misused for hostile purposes, potential terrorist or criminal interest in highly contagious pathogens, and so on. The Ebola outbreak in West Africa between 2013–16 and subsequent evaluation of the international response raised concerns among the BTWC states parties about how the international community might respond to a deliberate disease outbreak, whether as a consequence of an act of war or terrorism.
These trends have led to an affirmation of the humanitarian dimension of Article VII. As Nicholas Sims noted in his study of the treaty’s early functioning (The Diplomacy of Biological Disarmament. 1988, p. 24): ‘Statements made in the UN, with an eye on future references to the negotiating history of the convention, indicate that this article is generally understood to refer to humanitarian, not military, assistance.’ With nothing seemingly contradicting today’s humanitarian imperative, most attention has so far gone to the organisation and coordination of international response to the release of a highly infectious biological weapon (BW).
Questions about triggering Article VII
Much less understood is how Article VII can be activated. There are no procedures; there has not been any determination who should be involved in the process. Which are the (possible) roles for the BTWC Implementation Support Unit (ISU), the treaty’s three depositary states (Russia, United Kingdom and United States), the UN Secretary-General (UNSG), or the UNSC is a question that remains unanswered. It should be added in this context that some actors or available tools are of much more recent origin and were consequently not envisaged during the treaty negotiation. The mandate for the ISU was decided at the 6th Review Conference (2006). The UNSG’s mechanism to investigate allegations of chemical and biological weapons (CBW) use received endorsement from the UNSC and the UN General Assembly (UNGA) in 1988 and has since then been strengthened. Through the review process, BTWC states parties have elaborated a consultative mechanism under Article V to address compliance concerns.
Moreover, given the humanitarian framework guiding today’s debates on implementing Article VII, from the perspective of triggering the provision there are several dissonant elements. The article has its origins in a 1968 working paper by the United Kingdom proposing a separate treaty banning biological warfare. The language underwent several reiterations over the next three years and at one point disappeared entirely from the draft convention, only to resurface in its current formulation just before the conclusion of the negotiations. The different versions of the article left traces from earlier intentions and understandings, meaning that the intent behind certain phrases that may be uncertain or appear confusing today. This is particularly the case for the following:
provide or support assistance: what is the nature of the assistance, humanitarian, military, or any other type?
in accordance with the United Nations Charter: why does the article include a reference to the UN Charter, particularly since the Charter allows for punitive actions and even resort to military force under Chapter VII? In addition, if the assistance is humanitarian, as assumed today, what prompted the reference to the UN Charter? The word ‘humanitarian’ features only once in the founding text (Chapter I, Article 1, 3); the words ‘aid’ or ‘assistance’ (in the sense of humanitarian or non-military aid) are absent. Furthermore, while the UN’s mandate includes the promotion of arms control and disarmament, nothing in the Charter makes it responsible for monitoring treaty compliance or addressing treaty violations. Besides Article VII, only Articles V and VI refer to the Charter or UNSC. The context concerns the resolution of any problems relating to the BTWC’s objective, way of implementation, or breaches of the convention.
Article V raises the possibility of organising bi- and multilateral consultations and cooperation ‘through appropriate international procedures within the framework of the United Nations and in accordance with its Charter’ in case direct interaction between the parties concerned is impossible or unproductive. Overall the provision is vague. Review conferences have tried to clarify it, in particular with regard to the convening of a consultative meeting. Article VI grants a state party the right to lodge a complaint with the UNSC if it believes that another state party has breached its treaty obligations. Furthermore, should the UNSC initiate an investigation, all states parties undertake to cooperate with such investigation. However, states parties have not elaborated on the references to the UN Charter and the UNSC. They have also not answered whether there is or should be any linkage between either Articles V or VI and Article VII.
if the Security Council decides that such Party has been exposed to danger: why is there a requirement for Security Council action if assistance can be provided under basic humanitarian principles? On what basis will the UNSC make this decision? The Third and Fourth Review Conferences (1991 and 1996) noted under both Articles V and VI the UNSG’s investigative mechanism as endorsed in UNSC Resolution 620 (1988) and UNGA Resolution 45/57 (1990) and ‘to consult, at the request of any State Party, regarding allegations of use or threat of use of bacteriological (biological) or toxin weapons and to cooperate fully with the United Nations Secretary-General in carrying out such investigations’. Later review conferences refer back to this text and have not elaborated any further on the references to the UN Charter or the UNSC. The UNSC, as its name indicates, bears primary responsibility for the maintenance of international peace and security (Chapter V, Article 24, 1). Logic therefore suggests that Article VII applies exclusively to the deliberate use of a pathogen or toxin as a weapon. This would thus exclude a situation of a country facing an outbreak after an accidental release of a disease-causing agent from a neighbour’s secret BW research or production facility (similar to the anthrax outbreak near Sverdlovsk in 1979). In other words, according to this interpretation Article VII refers to an act of war, even though the BTWC lacks references to ‘use’ in both its title and Article I.
as a result of violation of the Convention: does this clause imply violation of any part of the BTWC? If affirmative, this could include illicit weapon programmes or outbreaks resulting from illicit activities. How would this square with the interpretation that Article VII only refers to an act of war?
Furthermore, only states parties can violate the BTWC, which implies that dangers arising from other actors—non-states parties (signatory or non-signatory states) or non-state actors—could not be the subject of Security Council action, and therefore not of state party assistance.
Aim of the research paper
In November 2016, in the margins of the 8th Review Conference of the BTWC, the Fondation pour la recherche stratégique (FRS) and UN Institute for Disarmament Research (UNIDIR) held a tabletop exercise (TTX) to understand better the elements that would have to be in place to trigger Article VII and the consequences such action may have on the organisation of international assistance. The TTX revealed that decision-making was severely hampered because of the article’s lack of clarity, uncertainty about possible procedures and their consequences on the process as a whole, and the types of actors that could be called upon (e.g. UNSG, ISU, depositary states, etc.).
Discussions at a workshop on ‘Article VII of the BWC and the UN System’, held in New York on 12–13 December 2017 as part of the Project on strengthening global mechanisms and capacities for responding to deliberate use of biological agents, also touched upon the specific responsibilities of UN organs following activation of Article VII. The question was raised whether there was any relevancy in trying to recover the negotiators’ original intentions. In reply, UN officials said that since the implications of triggering Article VII had never been studied and no procedures have ever been put in place, following a request the first task for the UN would be to study legal and negotiation documents to determine which types of action might be possible and which roles the UNSC and UNSG might play.
This research paper traces the article’s negotiation history between 1968 and 1971. During those three years negotiations took some sharp turns, and draft treaty texts were dropped and replaced by alternatives that framed BW control in radically different ways. In the final two months of negotiation, some degree of synthesis between different approaches took place. With respect to Article VII, when Morocco introduced an amendment to reinsert language based on the British proposal of August 1971, the context had completely changed, not in the least because the original draft provisions banning methods of biological warfare and a mechanism to investigate allegations of BW use had been dropped. Whereas Article IV in the original British draft convention formed part of the fabric to prevent biological warfare, the later Article VII had no obvious connections to the BTWC’s core prohibitions in Articles I – III. It also lacked direct or explicit links to Articles V and VI.
Moreover, the humanitarian intent, systematically affirmed by British government officials and diplomats, became blurred at times, especially after an addition to a draft UNSC resolution that was to accompany the BTWC made explicit reference to Article 51 of the UN Charter on individual and collective self-defence. It shifted the focus away from aiding the victim of a biological attack to possible assistance in countering the aggressor.
A recurring question in the context of the investigation by the Organisation for the Prohibition of Chemical Weapons (OPCW) into the use of chlorine in the attack against Douma on 7 April is whether chlorine is actually a chemical weapon (CW).
The simple answer is ‘yes’ if the chemical element is released as method of warfare, an act of terrorism, or any other deliberate act intended to harm or kill a person or animal.
There are two elements in the Chemical Weapons Convention (CWC) to bear in mind, namely the definition of a CW and the three Schedules (or lists with chemicals), which are annexed to the convention.
Definition of a chemical weapon under the CWC
Most toxic chemical are potentially dual-use. Moreover, the CWC wishes to cover not only yesterday’s and today’s toxic chemicals but also the ones that may be developed in the future. To this end, the CWC uses the so-called General Purpose Criterion (GPC): not the toxic chemical as such is prohibited; however, the purposes to which it may be applied are.
In this context it is useful to know that the treaty’s default condition is prohibition. In other words, all usage of toxic chemicals is prohibited unless for purposes that are not-prohibited (note the negative formulation). The CWC considers only four non-prohibited purposes.
1. “Chemical Weapons” means the following, together or separately:
(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes; […]
Here one can see that any toxic chemical is defined as a CW, except where intended for purposes not prohibited …, in which case the toxic chemical is by definition not a CW and therefore does not fall under the CWC.
Article II, 2 defines ‘toxic chemical’ as
‘Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere’.
In other words, this definition clearly bears on chlorine.
Since the assassination attempt on Sergei and Yulia Skripal with a nerve agent now just over one month ago, so much has been written about ‘Novichok’; so much has been opined about what ‘Novichok’ is meant to be (if it exists at all); and so much smoke has been spewed about what the identification of ‘Novichok’ suggests about culprits. This blog posting is the first of several to look into a specific aspect of the discussions concerning Novichok in the hope of clarifying where certain positions come from and what factual knowledge exists about this group of nerve agents.
Facts have been scarce. In fact, as a member of the public with long-time interest in chemical and biological weapons, I know very little about what took place in Salisbury on 4 March. I still have to see the first statement from British authorities—government officials, police, scientists at the Defence Science and Technology Laboratory (DSTL) at Porton Down—in what form the Novichok agent was delivered. Was it a liquid? A solid in powdered form? A binary concoction? Delivered in a gel or ointment? Anything else?
‘Novichok’ as we know the family of nerve agents today was researched, developed, produced and field-tested in sizeable quantities in the Soviet Union and at least during the early years of Russia as an independent state. Little else beyond this basic information given by some of the chemists involved in the armament programme is available. Those researchers are not always in agreement with each other, especially as regards the skill levels required to synthesise the agent.
Meanwhile, government officials from both the United Kingdom and the Russian federation have launched a war of hyperbole. London overstated the nature and quality of evidence from forensic chemistry; Moscow, amid a broad smoke-and-mirrors campaign, used the exaggerations to poke holes in the British narrative. Just like with allegations of chemical weapon (CW) use in Syria, Russia has released a barrage of denials concerning the assassination attempt in the UK through disaffirmation of any involvement, construction of spurious logic and citation of any ‘expert’ willing to entertain conspiracy theories. It furthermore rejects any outcome unfavourable to its world view and questions procedures and methodologies applied by investigative bodies. Moscow, however, never supplies any physical evidence in support of its claims.
Yet, over the din there are two steadfast Russian positions: (1) Russia is not responsible for the Soviet Union’s actions, and (2) CW declarations concern only ‘produced’ toxic chemicals for use in warfare. In the specific context of the CWC, it places the three Schedules central to the prohibitory regime.
On 4 April the Executive Council (EC) of the Organisation for the Prohibition of Chemical Weapons (OPCW) will meet in a special session. Russia called the extraordinary meeting. It has been a month now since former Russian spy Sergei Skripal and his daughter Yulia had been exposed to a nerve agent in Salisbury. The United Kingdom (UK) government identified it as a member of the ‘Novichok’ family, once researched and developed by the Soviet Union. Russia is believed to have continued the programme at least during the first years after the breakup of the USSR. It has never come clear on the nature of the programme or identified the agents’ characteristics. As no other country has ever been associated with the Novichok family of agents, London’s finger-pointing at Moscow was not difficult.
War of loud words
Since the assassination attempt a war of loud words has erupted. The UK has continued with its investigation and called in the OPCW’s expertise with a view of validating its analyses of the nerve agent. By the latest indications, the results from the OPCW-certified laboratories will not be available before the middle of this month.
Meanwhile, London also launched a diplomatic offensive to isolate Russia internationally (for an overview, see the dedicated UK government web page), which so far has ended with tit-for-tat expulsions of diplomatic staff. The rhetoric strayed off course. The assassination attempt got linked to similar incidents over the past years and decades, Russia’s actions in its near-abroad and Syria, its cyber campaigns against the institutions of Western democracy, and the country’s more assertive stance against Western interests, particularly those of the European Union (EU) and the North Atlantic Treaty Organisation (NATO). And, of course, the post-penultimate British schoolboy’s meme had to be called forth for domestic consumption: a mention of Nazi Germany.
Battle royale for the internet’s heart and minds
The British government’s (quite necessary) quietness about the investigation, the dearth of factual information beyond some generalities, and the distraction-causing verbal digressions into unrelated issue areas presented Russia with an open playing field. It was an opportunity it could not, and did not ignore.
Beyond the stacks of concealing black smoke and initial ridicule spouted by the government-sponsored international media and its diplomatic representatives to the UK, OPCW and EU, Moscow stayed much more focussed on the Skripal case. It was testing messages fast, discarding the ones failing to gain immediate traction and pursuing those that got picked up. Together, they addressed several issues simultaneously to drown out or cast doubt over any possible counterargument. That Russian officials or media contradicted themselves or seemingly confessed to total ignorance about past chemical warfare programmes did not matter. Speed was of the essence to avoid a coherent ripostes.
So, they challenged the notion that Russia was the sole originator of Novichok agents; they denied that there had ever been a Novichok programme; they suggested that the agent came form the British chemical defence laboratories at Porton Down or from similar facilities in other European countries; they questioned the OPCW’s legitimacy in the investigation while embracing the procedures foreseen in the Chemical Weapons Convention (CWC) to discuss the matter; etc. They upbraided the UK government for not releasing details about the nerve agent while the investigation is going on. And then Foreign Minister Sergei Lavrov proffered motive for the British using a Novichok agent against the Skripal family: covering up difficulties over Brexit.
However ludicrous some of the arguments, Moscow ultimately turned the tables on London. Russia now portrays itself as the victim of the attack because the UK was unable to guarantee the safety and security of its citizens, in addition to which it now refuses Russian consular access to Yulia. And exploiting both British silence on the heart of the matter and the waiting period for the OPCW test results, it called for an special session of the OPCW EC after having publicly released two sets of questions (1st set; 2nd set), some of which it could use to initiate the clarification process under CWC Article IX, 2. Quite a few of these questions Moscow has field-tested via its global megaphone. (A subset of questions Russia addressed to the French government too.)
Will Britain’s hand be forced?
How will the EC meeting tomorrow pan out? Difficult to say, but if the debates over Syria’s chemical weapon (CW) use offer any guidance, then the following broad lines may re-establish themselves: the Western countries will decry the violation of the CWC and seek justice; Russia will play out a geopolitical strategy based on nominal pledges of cooperation to influence the votes of members of the Non-Aligned Movement who are wary of being caught up in a new hegemonic struggle between Moscow and Washington.
Russia has definitely laid the groundwork for triggering Article IX, 2. But will it trigger it tomorrow? This is far from certain. Moscow’s core aim may be to place some of the key questions it has already publicised into the formal record, thereby forcing the UK to respond. Any reluctance or avoidance by London would feed a certain narrative, at least until the OPCW submits its own laboratory findings to the UK. That narrative will anticipate those findings; at a minimum it will place the British government under great pressure to release the analyses to other OPCW members, including Russia. That pressure might also compel the British government to follow OPCW procedures rather than pursuing the case through other diplomatic means, in which case Moscow’s gambit may already be anticipating crucial votes further down that path. (For an overview of the Article IX process, see my earlier blog posting Novichok and the Chemical Weapons Convention.)
Remains one question in all this: Where is Washington? в кармане?
Assassinations with nerve agents are rare. Very rare. The reason is simple: other means to eliminate a person are simpler and much more effective. The marginal benefit from using even some of the most toxic substances ever made by man is negligible. What is more, the attempt fails often, as Aum Shinrikyo experienced when trying to take out some of the cult’s enemies with VX before the 1995 sarin attack in the Tokyo underground. Last year’s murder of Kim Jong-nam, half-brother of North-Korean leader Kim Jong-un, also involved VX according to Malaysian authorities. However, the real perpetrator behind the two women who rubbed the substance in his face was quickly identified.
The surprise that the assassination attempt on former Russian spy Sergei Skripal and his daughter Yulia in Salisbury, UK on 4 March involved one of the Novichoks was not little. First, this family of nerve agents is relatively unknown. Outside specialised disarmament and HazMat communities few people would have been aware of its existence. Over 100 chemical structures are believed to belong to it, all related yet different. The group of chemical structures does not figure in the Annex on Chemicals of the Chemical Weapons Convention (CWC). Second, the substance was produced in any sizeable quantities in only one single country, the Soviet Union. Third, the required precursor chemicals and the pathways to synthesise the final agents are completely obscure to most of the public.
The UK government has formally accused Russia of the assassination attempt and expelled 23 Russian diplomatic personnel. Moscow vehemently denies the accusal and has retaliated by demanding that a similar number of diplomats leave the country. It furthermore denies ever having developed and produced Novichoks. The incident follows an already bitter stand-off between the West and Russia over Syria’s proven chemical weapon (CW) use that blocks effective UN Security Council action and splits the Executive Council (EC) of the Organisation for the Prohibition of Chemical Weapons (OPCW). As the government of Prime Minister Theresa May has formally declared its intention to have the OPCW independently verify its analyses and share it with its international partners, the question is whether and how the international organisation can contribute to resolving the matter.
Ensuring compliance under the CWC
Beyond the CWC’s routine verification process involving declarations, assessments and inspections, Article IX ‘Consultations, Cooperation and Fact-Finding’ foresees procedures to resolve uncertainties about compliance or breaches of the convention. These procedures are consultations, clarification, challenge inspection and investigation of alleged use.
Consultation concerning anomalies
The CWC does not detail what consultations should entail, but views and encourages them together with information exchanges as one of the early (or low-key) diplomatic exchanges among states parties to resolve doubts or ambiguities about compliance.
According to a statement issued by the UK’s Foreign and Commonwealth Office, on 12 March Foreign Secretary Boris Johnson summoned the Russian Ambassador to seek an explanation from the Russian Government. The statement strongly suggests that the step was undertaken under the consultative process foreseen under Article IX. It added that Russia provided no meaningful response.
Summary of the consultation procedure (Slide by JP Zanders)
Clarification of compliance concerns
If in doubt or concerned about compliance, a state party may seek clarification. A state party will address the initial request for clarification to another state party, who must reply within 10 days. Although not stipulated in the convention, a degree of expectation exists that the latter would supply supplementary information (i.e. beyond what is available from, for instance, annual declarations or routine inspections) to address the concern.
In case the reply does not resolve the concern, the requesting state party may call for assistance from the EC, which must use its authority to lend weight to the request, including through forwarding the request within 24 hours. The state party to whom the clarification request is addressed has once again a maximum of 10 days to respond. If the replies still do not satisfy, the requesting state party my next request the EC to obtain further information, in which case it may (not ‘must’) decide to set up a group of experts to examine all available information and reports and submit a factual report. Although the group of experts can draw on previous inspection reports, it is in no position to launch its own inspection procedure.
After either of the two previous steps, the requesting state party may call for a special session of the EC, which then has the decision authority to ‘recommend any measure it deems appropriate to resolve the situation’. Although not stated explicitly in Article IX, those measures would presumably include obtention of further information or persuasion of the targeted state party to resolve the presumed violation in accordance with the CWC. If the requesting state party remains unsatisfied with the response, it may call for a special session of the Conference of States Parties (CSP) 60 days after the submission of the request for clarification to the EC. The CSP is to consider and may take any measure, which, as in the case of the EC, remains unspecified in the convention.
It is important to note that the launch of a clarification procedure does not require the outcome of routine inspections, but inspection reports may trigger additional requests for information. It should also be noted that the procedures described above do not affect the requesting state party’s right to call for a challenge inspection, nor are they affected by the conduct of a challenge inspection.
Summary of the clarification process (Slide by JP Zanders)
Challenge of non-compliance
Challenge inspections are the third tool outlined in CWC Article IX. It consists of a short-notice inspection at any site (irrespective of whether it has been declared or not) in a state party. Once the OPCW has authorised the challenge inspection the targeted state party has no right of refusal, but it can invoke the technique of managed access through which OPCW inspectors may be denied access to certain parts of the site. Managed access cannot be implemented in such a way that inspector access to the site as such is denied. However, irrespective of the outcome of the managed access negotiations between representatives of the challenged stated party and the OPCW inspectors, the latter retain full right to interview any staff member of the site (and thus possibly obtain relevant information about the areas to which they have been denied access).
Although a challenge inspection can be requested at any stage of consultation of clarification processes, the CWC encourages states parties to view the tool as an instrument of last resort.
Summary of the challenge inspection process (Slide by JP Zanders)
Investigation of alleged use
Part XI of the Verification Annex details the process of investigating the alleged use of CW or the alleged use of riot control agents as a method of warfare. In case the alleged use involves a state not party to the CWC, then the Director-General of the OPCW will closely cooperate with the UN Secretary General.
The procedure is applied (and has been further developed) with respect to the many allegations of chemical warfare in Syria. It is less relevant to the Novichok case.
Pathways to resolving the Novichok matter
How the investigation of the Skripal assassination attempt plays out will largely depend on the next key decisions by the UK government. The OPCW experts travel to the UK under Article VIII, 38(e), which qualifies their activity as a ‘Technical Assistance Visit’ to help with the evaluation of an unscheduled chemical (the Novichock agent) is not listed in any of the three schedules in the Annex on Chemicals). They will likely visit the sites of investigation and collect their own samples (if for no other reason than to validate any laboratory samples they may receive), take all materials and documents related to the forensic investigation back to the Netherlands where the sample will be divided up and sent to two or more designated OPCW laboratories. (The list for 2017 can be consulted here.)
After having received the report, the UK government may opt to pursue the case using its own diplomatic means, possibly together with its allies, or it may decide to invoke one of the procedures outlined above, the most likely one being the clarification process. Given the current level of political rhetoric and the earlier summons of the Russian Ambassador, consultations will have little utility left. To call for a challenge inspection the UK will need to have extraordinarily precise information about the production or storage location (which might be difficult if, for example, forensic analysis points to recent, small-scale synthesis of Novichok or to a chemical structure different from those associated with the Soviet programme).
At present the outcome of any one of the procedures is difficult to foresee. Neither the clarification process nor challenge inspection option have been invoked previously. Moreover, even though the CWC may at first sight seem to suggest a hierarchy among the different procedures in terms of increasing stringency or steps in an escalatory process, each one can be pursued independently. They may also be invoked in succession, or they can run in parallel. One procedure is not necessarily a prerequisite to another one.
Central to the understanding of the procedures is that the OPCW, as an independent international organisation dedicated to overseeing the implementation of the CWC, provides a forum for consultation and cooperation among states parties, also in matters concerning compliance or conflict resolution.
Something really remarkable happened in the first two weeks of 2018. On 2 January, quite out of the blue came the notification by UN Secretary-General António Guterres that the State of Palestine had deposited its instrument of accession to the Chemical Weapons Convention (CWC). It was to become the 193rd state party on 28 January, thirty days after having submitted the document (29 December). Indeed, ‘was’. Guterres formally informed UN members on 11 January that Palestine had withdrawn its instrument of accession three days earlier.
States withdrawing from a disarmament or arms control treaty is extremely rare. But it does happen. North Korea, for example, left the Nuclear Non-Proliferation Treaty (NPT) in 2003. However, I do not recall having come across an instrument of accession being withdrawn after its formal deposit. (Internet searches did not yield any results either, although poor selection of search terms might be responsible for that.) The closest is the ‘unsigning’ of treaties (as the USA did with the Rome Statute of the International Criminal Court). In those cases the agreement had not yet entered into force for the country concerned.
Palestine’s initial action on the CWC did not come in isolation. Today, 16 January 2018, the Implementation Support Unit announced that Palestine had become the 180th state party to the Biological and Toxin Weapons Convention (BTWC).
Out of the blue
I have been expecting Palestine’s accession to the CWC since it attempted to attend 2014 CWC Conference of States Parties (CSP) as a non-State Party observer. I do not recollect similar efforts since then, certainly not at last November’s CSP. The attendance request caused some unease among certain participating states. However, it was denied because the Palestinian delegation had not registered before the formal deadline andthe CSP had already formally approved the list of attending observers.
Palestine became eligible to join treaties on 29 November 2012 when the UN General Assembly granted it status of ‘non-member observer state’ (Resolution A/RES/67/19). According to the UN Under-Secretary-General for Legal Affairs, the upgrade from ‘observer entity’ is significant because ‘Palestine may participate in multilateral treaties to which the Secretary-General is the depositary and in international conferences convened under the auspices of the UN that are open to “all States” (the “all States” formula)’. In reality the impact is broader, as is evidenced by Palestine’s accession to the NPT in February 2015 (instrument deposited with Moscow) and the BTWC (deposit with Russia and the United Kingdom). The Holy See is the only other sovereign entity with similar status. It joined the NPT in February 1971, the BTWC in January 2002, and the CWC in June 1999.
Since the upgrade Palestine has gone trough three waves of treaty adhesion: April 2014 (15 documents), December 2014 (18 documents), and December 2017 (22 documents). The treaties in question are listed in annex below. They fall in four major areas, namely diplomatic relations; human, economic and social rights; environmental law; and humanitarian/arms control law.
Of the 22 Palestinian applications in December, the UN Secretary-General issued Depositary Notifications for 19 treaties on 2 and 3 January. The notifications included several weapon control treaties. Only the instrument of accession to the CWC was subsequently withdrawn.
Why the retraction?
Since achieving UN Observer State status in 2012 Palestine has pursued a deliberate policy of becoming a respected member of the international community by unreservedly adhering to international law. In his Master of Laws dissertation entitled Palestine’s Ratification of International Treaties – A Back Door to Independence? (Lund University, 2016), Victor Persson argued that ‘ratifying international treaties strengthens Palestine’s claim for statehood through recognition, which in turn increases pressure for independence on its occupier, Israel’.
However, the latest wave of applications may have been more impulsive than considered. On the day of the deposit of the instruments of accession the Israeli daily Haaretz claimed that US President Donald Trump’s announcement on 6 December to move the US embassy from Tel Aviv to Jerusalem prompted Palestinian President Mahmoud Abbas’ decision. The article further noted that Israel’s ambassador to the UN was holding meetings with his US counterpart to formulate a joint response to the Palestinian move. Meanwhile, the rhetoric between Washington and Ramallah has grown increasingly strident.
Focussing on the escalating conflict, three explanations for the retraction of the instrument of accession seemed possible.
First, the USA (and through it, Israel) exerted great pressure on UN Secretary-General Guterres to force Palestine to reconsider its action. However, while nobody should be surprised about consultations with him, in his role as depositary he is just an executioner. As Article 77 of the Vienna Convention on the Law of Treaties states, one of the functions of a treaty depositary is ‘Receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it’. The USA could also have leaned on some of its Arab partners in the region, but given his mood and escalating anger with Washington it appears unlikely that President Abbas would have been persuaded.
Second, as noted earlier, the CWC is the only treaty for which Palestine rescinded its accession. Of all the treaties it applied to join, the CWC is the only one with a dedicated international organisation. (The International Atomic Energy Agency, which supports aspects of NPT implementation, is founded in a different document.) The USA is not loath to exercising the power of the purse to try and compel international organisations to more or less toe its line. For example, in October 2011 the board of UN Educational, Scientific and Cultural Organization (UNESCO) voted to admit Palestine as a state, which prompted Washington to cut in its annual contributions to the organisation. In April 2016 the UN Framework Convention on Climate Change (UNFCCC) accepted the Palestinian Authority as a state party, prompting a group of US Senators to demand that the UN agency be denied any further US funding.
No funds authorized to be appropriated by this Act or any other Act shall be available for the United Nations or any specialized agency thereof which accords the Palestine Liberation Organization the same standing as member states.
Moreover, Public Law 103-236, enacted in 1994, prohibits
voluntary or assessed contribution to any affiliated organization of the United Nations which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood.
According to this line of reasoning, pressure would have been exerted on Palestine to rescind its accession because of fears that the OPCW might otherwise lose over 25% of its budget.
This scenario also seems problematic. First, while the UN Secretary-General may be the CWC’s depositary, the OPCW is an independent treaty implementation organisation rather than a specialised UN agency. Second, contrary to UNESCO or UNFCCC, it is not the OPCW that invites in Palestine (or any other entity). A state automatically becomes an OPCW member as soon as the CWC enters into force for it. No single entity—another state party, the OPCW Technical Secretariat, or the UN Secretary-General—can halt or block that dynamic. Third, no US official has hinted in conversations since the Palestinian delegation attempted to officially participate in an OPCW meeting in 2014 that withholding contributions to the annual budget was an option. On the contrary, the USA has too great stakes in the successful global implementation of the CWC.
Avoidance to internationalise the Israeli–Palestinian conflict
Finally, a third possible explanation was suggested by several people from the Middle East whom I contacted: all parties involved tend to avoid internationalising the Israeli–Palestinian conflict.
Palestine’s joining the CWC could indeed have risked the opposite effect because of Israel’s widespread use of riot control agents and other irritants in the occupied territories. Any request to the OPCW to investigate such use would require clarification of the legal status of the occupied territories under international law. Only if Israel exerts full legal jurisdiction over those areas in which it uses riot control agents, it could be argued that such use is domestic and therefore part of legitimate law enforcement. Given Israel’s settlement policies, Palestine will continue to contest Israel’s jurisdiction over large swaths of land. OPCW investigators require authorisation by the state party concerned to access the site of an alleged incident. Israel, of course, is not a party to the CWC and questions would arise whether OPCW personnel can access all parts of the Palestinian territory without requiring transit approval by Israeli authorities (see also below). In addition, given the rawness of international feeling about the Israeli–Palestinian conflict, political and ideological divisions similar to the ones exposed by the debates on Syria’s CW use might split decision-making in the OPCW even further.
This hypothesis leaves open who might be the instigator of the pressure to have Palestine withdraw its instrument of accession and which diplomatic channels might have been used. It also ignores the various options—many of which could and would be devised within the treaty framework once issues are formally raised—available under the CWC to address any specific threats posed by CW to a state party. Indeed, similar legal and political questions have already been considered in connection with Palestine’s accession in January 2015 to the Rome Statute founding the International Criminal Court (ICC). Even while some key players are not party to the Statute, Beti Hohler concluded her analysis of Palestinian accession as follows:
By assessing admissibility of a case, the ICC would effectively be called to assess Israel’s justice system and its capability to genuinely deal with war crimes allegations. Whilst the actual determination would be made on the basis of a specific case and the individual concerned, it cannot be overlooked that Israel in general has a well functioning legal system headed by a respected supreme court.
What is then the likelihood of an intervention by the ICC following Palestine’s accession? Besides the aforementioned legal issues, policy and political realities should also be considered. The reality is that the ICC is heavily dependent on the support of its states parties, including for any type of enforcement as well as for actually ensuring the attendance of suspected perpetrators at The Hague.
In conclusion, the impact of Palestine’s accession to the ICC and what will be its political implications for the Middle East peace process remains to be seen. There are at the moment far more questions than there are clear-cut answers.
One thing however is certain: with Palestine’s accession to the Statute, the legal framework has changed and the parties to the conflict would be wise to accept and respect that.
A more benign explanation for the retraction of accession?
Did you know that the CWC contains 42 instances of situations that will legally affect states parties or require actions that they must complete within 30 days? One example is that the treaty enters into force for a new state party 30 days after the deposit of the instrument of ratification or accession (Article XXI, 2). Another one is that a new state party must submit a series of detailed declarations not later than 30 days after the CWC enters into force for it.
Given that President Abbas seems to have decided to take action on accession in retaliation for the announced move of the US embassy to Jerusalem, did the Palestinian government fully appreciate the level of preparations joining the CWC requires? The country may lie in an active conflict zone, but it is hardly a Syria that would justify consideration of exceptional measures.
Other countries with internal or cross-border conflicts have become member of the OPCW. However, the process takes time. It often involves regional organisations and other states parties facilitating or supporting interactions, providing concrete assistance with legal and practical preparations, teaching and training officials as well as reaching out to key stakeholder communities (including parliamentarians, industry, academia, or any other constituency whose activities could be affected by the treaty) to build political support and capacity. Expert staff from the OPCW Technical Secretariat may already be involved in the concrete preparations to meet the treaty requirements within the set deadlines well before a state becomes a party. In fact, the deposit of the instrument of accession may be timed in function of milestones achieved.
Palestine would face an additional major legal and practical problem: how and where would inspectors enter or exit its territory? First, the Palestinian territories are non-contiguous. Second, the Palestinian Authority does not control all of the Palestinian territory, which means that it would have to special arrangements with Hamas who controls the Gaza strip. However, while a border crossing with Jordan could conceivably be designated as the CWC-required Point of Entry/Point of Exit (Verification Annex, Part I ‘Definitions’, para. 24), the Gaza strip is completely surrounded by Egypt and Israel, two non-states parties. Reaching it over land from the West Bank, by air or via a sea port would likely involve Israel one way or another.
So, a benign explanation might hold that the OPCW alerted the UN Secretary-General or regional states parties to the host of practical problems the unexpected application would pose for Palestine.
Perhaps persuasion might not have been all that difficult. In the afore-cited dissertation, Victor Persson points to the possible role of another significant domestic factor in the process:
due to the current suspension of the parliament, Palestine must choose either to postpone the implementation process or implement the treaties by presidential decree. Postponing the implementation would raise doubts on Palestine’s commitment to follow its new international obligations. Implementing international law by presidential decree on the other hand is an undemocratic legislative procedure.
That dilemma does not even begin to address the complexity of CWC implementation.
At present it is not at all clear why Palestine retracted its accession to the CWC. The immediate explanations—different types of diplomatic pressure by different actors or prevention of internationalising the conflict with Israel—do not answer why the CWC is the only one out of more than 50 treaties that suffered this fate. The observation that the convention is the only international agreement to be served by its own international organisation offers few grounds to assume that the OPCW would be exposed to financial coercion.
An alternative explanation is that the Palestinian authorities have withdrawn the instrument of accession after having been informed of the complex ramifications of becoming a party to the CWC. The impulsiveness of the initial decision in the wake of the US announcement to move the embassy to Jerusalem seems to support this hypothesis. However, this line of thought still requires confirmation on the ground, whether in the Middle East, New York or The Hague.
Annex: Palestine’s waves of treaty adhesion
The first wave (April 2014)
Vienna Convention on Consular Services
Vienna Convention on Diplomatic Relations
The Vienna Convention on the Law of Treaties
Convention on the Elimination of All Forms of Discrimination against Women
Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child (on the involvement of children in armed conflict)
Convention on the Rights of Persons with Disabilities
International Convention on the Elimination of All Forms of Racial Discrimination
International Convention on the Suppression and Punishment of the Crime of Apartheid
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural Rights
UN Convention against Corruption
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Convention on the Prevention and Punishment of the Crime of Genocide
Geneva Conventions of 12 August 1949 and Additional Protocols
Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land
The second wave (December 2014)
Convention on the Political Rights of Women
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal
Convention on Biological Diversity and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III)
Convention on the Law of the Non-Navigational Uses of International Watercourses
Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents
United Nations Convention against Transnational Organized Crime
Convention on the Safety of United Nations and Associated Personnel and the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel
United Nations Convention on the Law of the Sea
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity
Agreement on the Privileges and Immunities of the International Criminal Court
Rome Statute of the International Criminal Court
Declaration in accordance with the Rome Statute of the International Criminal Court
The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
The Treaty on the Non-Proliferation of Nuclear Weapons
Convention on Cluster Munitions
The third wave (December 2017)
International Convention for the Suppression of Acts of Nuclear Terrorism
Convention on the Physical Protection of Nuclear Material
Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides International Trade
Stockholm Convention on Persistent Organic Pollutants
The Convention for the Protection of the Mediterranean Sea Against Pollution
The Convention on the Prohibition of Military or Any Modification Techniques (Environmental Modification Convention or ENMOD)
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
Chemical Weapons Convention
Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol)
Biological and Toxin Weapons Convention
Anti-Personnel Mine Ban Convention
Remnants of War additional protocol one (CCW APV 2006)
Arms Trade treaty
United Nations Convention on Contracts for the International Sale of Goods
Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol
Convention on Psychotropic Substances of 1971
United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988
United Nations Convention to Combat Desertification
The Convention on International Transport of Goods Under Cover of TIR Carnets
Protocol on the Sale of Children, Child Prostitution and Child Pornography
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime
The Amendment to article 8 of the Rome Statute of the International Criminal Court
(As an aside, the Treaty on the Prohibition of Nuclear Weapons intriguingly does not figure in the latter list, even though Palestine signed it when it was opened for signature on 20 September 2017.)
Distinguished representatives, colleagues, let me first stress that I am very honoured to be invited to contribute to this event. May I thank the organisers and sponsors very much,
In the next 15 minutes I would like to draw a picture of possible developments of confidence building in the BWC. To that end I will briefly introduce the term confidence and its sources, and will then mainly concentrate on transparency as one of these sources. Finally I am going to consider the possible involvement of new actors and mechanisms in confidence building.
Confidence is a term that is used throughout from the level of private arrangements, via societal and economic contexts (contracts), but of course also in the field of international relations. The main function of agreements is, besides the ‘technical’ overcoming of specified problems, the fostering of mutual trust in compliance with treaty obligations. Obviously there is a central role of information, but neither will it be possible to access all relevant information, nor is the judgement of such information—the decision if it is sufficient to build confidence—a scientific exercise. This is even more evident, since many parties will have different understandings of compliance. Accordingly confidence can hardly be measured in a binary system, but will rather be perceived as gradually changing when trust in compliant behaviour is growing or decreasing.
Trying to get an idea about confidence in the BWC regime one would basically have to measure that level in every single member state. On a general level it can be stated that whenever there exists an arrangement, a contract or an international treaty there was obviously a ground level of confidence when it was agreed. On the other hand, the stakeholders must have seen the need for a mutual system to enhance confidence in compliance.
Confidence is, however, not only fostered by knowledge enabling to make qualified guesses on the level of implementation of the prohibitive obligations, but also by factors that have no direct link with the technical requirements of arms control. Among these factors are the perception of parties as being subject to a just treatment and the perception that those parties with the greatest BW-relevant capacities are really committed to the treaty obligations.
If the success of a treaty is an indicator for the level of confidence, we might face a satisfactory level of confidence in the BWC. There were offensive BW programmes before the BWC came into force; and we have then seen offensive programmes while it was in force, among them a very large one. But now we have since 25 years not witnessed a BW programme (the ricin-programme in the non-BWC member Syria can be discussed as a case, however).
That BW programmes were seldom developed after the coming into force of the BWC might rather be a result of the limited military value of BW (still we don’t know much about the scenarios in which the Soviet bio weapons could have been used). Today there are reasons to believe that there are no offensive programmes anywhere in the world. It is certainly worth learning about military defence programmes, but it is also true that few states have the means or the interest to run critical programs. Hence, biological arms control is today, as far as we know, preventive arms control. However, the idea that there are no BW programmes is based on the unorganised information gathering we have to rely on.
With the possible absence of illicit military activities, confidence building does in many cases concentrate on civil academic or commercial activities with dual-use potential and will try to identify growing misuse potentials and qualified questions about applications and actors (this touches the debate about dual-use research of concern (DURC) that others have touched upon in more detail earlier today).
The widespread dual-use phenomenon and the involvement of many civil facilities is a characteristic of biological arms control, which is probably more distinctive here than in any other arms control field. At least since a number of years, if not back to the early 1970s, the potential for misuse of civil technology and civil research is in the focus, even if the buzzwords biosafety and biosecurity popped up only in the recent years. The trend that the direction of technology diffusion is nowadays rather from civil innovation systems to the military sphere has been known in the bio field for many years.
Besides the fast development of the ground laying technology, it’s methods and scientific capabilities, the spread of capacities to ever more states is a major change to the early 1970s. Back then only in relatively few states in northern America, Western and Eastern Europe and in the USSR relevant capacities in biotechnology were present. Today biotechnology with its imminent and widely spread dual-use potential is a global multi-billion dollar business, still fast growing in many places – and still not developed in many others. This spread might be reason for concerns from an arms control perspective, but the amalgamation with economic interests can also not be rationalised away.
With a much smaller geographical spread of biotechnology and with the block confrontation of the Cold War one of the obligations of the BWC was possibly less central than it appears today: the obligation for technical cooperation under article X. However, there can’t be confidence without the perception of a just treatment of all members as partners with equal chances in the indigenous development of one of the most important industries of our time. For the development of confidence on this provision information plays again a central role, although the questions raised in this context differ from those concerning articles I and III. But here as well transparency is quintessential in helping to base the debate on empirical data.
That there is a problem with transparency in the BWC on different levels is not a secret, really. Given that transparency is main source for confidence (for both the prohibitive and obligatory provisions of the treaty) the look on confidence mainly deals with the question of how to enhance transparency.
Types and sources of transparency
One can think of transparency in different types and as being fed by different sources.
Types of transparency can be defined by its different ranges, namely greater or smaller groups of actors that have access to the information in a transparency system. Starting with the greatest possible extent, public transparency reaches the public as a whole, while in inter-state transparency systems only the parties of a treaty are provided with information. The CBM mechanism is an example for such a practice (although some states make their CBMs transparent for the public sphere). I don’t want to talk much about CBMs. We all know that the number of states participating in this mechanism is not satisfactory. I hope, however, that during this talk it will become clear why they should play a central role in the BWC’s future. A third type of transparency besides the public and inter-governmental transparency, is the exclusive access to information by just one actor (typically a state) when a phenomenon is being made transparent by (and only for) that single actor.
Since transparency is (or should be) a practical exercise, it is maybe helpful to concentrate on the different technical means that are applied in the three different transparency systems. I propose to differentiate in between national technical means (NTMs), international technical means (ITMs), and public technical means (PTMs).
First, NTMs are technical means under the exclusive ownership of single states, hence also the gathered information is exclusively with that state. Their use leads to the single actor type of transparency.
Second, ITMs (not established in the BWC regime) are those technical means that States Parties allow treaty organisations to use.
Third, PTMs are the technical means that rely on open sources and are used to the end to release the gathered information to the public sphere. Their rage has grown significantly over the past years. The digital revolution allows access to a broad range of information. For example:
Real time epidemiologic information
Information on biotechnological capacities, products, and research projects
Free (including commercial) satellite images – here is also a link to the reconnaissance revolution in the last 20 years
Trade data (dual-use goods and biotech end-products)
Scientific publications (PubMed and other databases)
Digital meta information about companies and research facilities
Exchanges on social media
… This list can be expanded any further;
And besides the use of this universe of existing data that can be identified and filtered from Big Data it is also thinkable that innovative ways to measure environmental data with newly developed technology can contribute to transparency.
The use of these PTMs produces no proof, but will enable actors to ask qualified questions.
Just three examples for questions that occured when working on our current project on the identification of compliance relevant parameters that can be accessed via open sources:
Why are the security perimeters of a certain facility with known dual-use character being modernised (information accessed by google.earth images)?
Why do we see certain relevant research activities at institutes that are linked to the military information accessed by PubMed or turn up in google and twitter?
How can the consumption of unusual amounts of biological growth media in a county be explained (information accessed via UN COMTRADE database)?
It is hence no verification, but it is much more than what is actually being done in the regime.
In an ideal world the mentioned information sources would be accesses at the widest possible extent as ITMs to contribute to a verification mechanism. In the BWC, however, we had to realise that ITMs will not be implemented in the foreseeable future. Since confidence building by enhancing transparency is quintessential for the function of the regime other actors will have to play the role that in other cases is allocated to International Organisations.
I would like to briefly come back to a more theoretical reasoning of transparency to answer the question which actors could/should do so. Transparency can also be described by looking at the direction of the distribution of information: Information can be provided actively by states or biotech stakeholders, or they can be extracted out of the (mostly) electronic/digital universe of information. This can be called passive transparency.
As parties, states would be at the forefront of stakeholders who would be asked to actively provide information to enhance confidence. In the BWC the related mechanism are the CBMs. But also other actors can contribute to active transparency building. For a look into the future it might be helpful to look into the roots of the regime: Already back in 1964 the Pugwash CBW-group had initiated a voluntary inspection mechanism. Participating were commercial and academic facilities from eastern and western European facilities (indeed only one larger non-western biotech production facility in Yugoslavia was involved). The project was later continued by the then newly founded Stockholm International Peace Research Institute (SIPRI). The aim of the overall project was to prove that on-site verification is possible without endangering commercial secrets. A lesson that was learned but seems to have been forgotten is that commercial actors could get involved in active transparency building, also on a voluntary base.
The passive extraction of relevant information is also not a new idea—neither in other contexts nor in the BWC. When the BWC was negotiated in the early 1970s the just mentioned SIPRI was also innovative in the development of passive transparency tools, and demonstrated the value of Open Source information already back then. By the application of innovative investigative tools the SIPRI researchers already showed that even non-governmental actors could gather relevant information. In 1971 the mechanism was meant as proof that these methods could contribute to a then debated verification mechanism.
And indeed, when it came to the question which would be the best confidence building mechanism, the development of a formal verification mechanism based on on-site inspections was for many years seen as the silver bullet—possibly, it still is. But there is obviously the need to identify alternatives.
In this context it has to be stated that 40 years after SIPRI’s engagement the possibilities to enhance passive transparency by the use of the above mentioned open source information has grown exponentially. Some states may have the capacities to use these information in Open-source intelligence (OSINT) procedures, but many others will not be able to do so on a global scale. This is the reason why often international organisations are installed for information gathering. This is also not to come here (please surprise me at the Review Conference).
Civil society actors should in a best case scenario be a corrective and/or undertake parallel independent control activities. NGOs could be watchdogs, but not the only actors in the production of transparency. However, there are also cases as in the landmines and cluster munition regimes where in the absence of a formal verification system civil society actors do what has been called “Quasi verification” by a number of States Parties. In biological arms control they might also be able (or be enabled) to play a more central role, as long as no information system becomes institutionalised.
The current development of capacities in applying PTMs in passive transparency building might be a “technical” environment that fosters new formats and civil society monitoring networks. With the idea that relevant information will be recognised in a regime regardless by what type of actor it was gathered, NGOs could play a greater role in confidence building in biological arms control.
However, this also means that states should do as much as they can to proof their commitment with the treaty provisions. And that means first of all, better participation in the CBM mechanism. May I add that I don’t think that any state would lose anything if its CBM submission is being made public.
If every actor—state, private, and civil society—improves confidence by enhancing transparency through the use of the specific means at its disposal and therewith contributes to an open, evidence-based debate about compliance relevant factors, I am optimistic that biological arms control will remain successfully based on the BWC for at least another 40 years.
Using the Momentum of Syria’s Chemical Weapons Dismantlement and Identifying Spill-Over Potentials
Discussion note prepared for: Academic Peace Orchestra – Middle East (APOME), Tackling the Middle East WMD/DVs Arsenals in the Context of Military Asymmetries Towards Zonal Disarmament, Berlin, 11–12 March 2015
Syria acceded to the Chemical Weapons Convention (CWC) on 14 September 2013 and formally became a state party on 14 October. This was the outcome of a framework agreement on the elimination of Syria’s chemical warfare capacities between Russia and the United States reached in Geneva on 14 September. This accord averted military strikes by France, the United Kingdom and the United States as reprisal for the use of chemical weapons (CW) in the Syrian civil war. In particular the attacks against the Damascus suburb of Ghouta on 21 August represented a major escalation in the conflict. The sarin nerve agent killed hundreds of people and injured many more. At the time of the attacks a UN team comprising experts from the Organisation for the Prohibition of Chemical Weapons (OPCW) and the World Health Organisation (WHO) were in Damascus in response to an earlier request by the Syrian government to investigate alleged CW use during the spring of 2013. After modification of its mandate, it investigated the Ghouta attacks and issued their preliminary report on 16 September, two days after the Geneva accord. The findings all but blamed the Syrian government. The team submitted its final report covering all chemical warfare allegations from the original mandate as well as some additional attacks after the Ghouta incident on 12 December.
After becoming a party to the CWC the verification activities have consisted of four types of activities:
Syrian declarations on CW holdings, CW-relevant infrastructure (production and storage sites), and on the history of its chemical warfare programme since 1 January 1946. Given the special circumstances that have led the country to accede to the convention, Syria was requested and has (or is in the process of ) providing information on the destruction of CW before becoming a CWC party. As illustrated by the cases of France and Iran, a state party is not normally required to declare this type of information. However, in order to ensure that Syria is not hiding secret stashes of CW, the requested data contribute to establishing a baseline for its past capacities.
The OPCW verifies those declarations, resolves anomalies and where required requests amendments to those declarations.
The OPCW conducted inspections at the declared production and storage sites. It oversaw the removal of chemical warfare and precursor agents from Syrian territory and the destruction of delivery means, relevant equipment and installations, and precursor chemicals. It also oversaw the hydrolysis of mustard agent and the neutralisation of a range of precursor chemicals aboard the US vessel Cape Ray in the Mediterranean and the destruction of the resulting effluents in incinerators in Finland, Germany, the United Kingdom and the United States. At present the OPCW is also overseeing the destruction of the former Syrian CW production facilities. To date, two out of twelve buildings have been destroyed and completion of this task is envisaged for this summer.
The OPCW carried out field investigations into the alleged use of chlorine during the spring and summer of 2014.
This background note discusses some unique features of the disarmament regime for Syria and their potential relevancy for the Middle East Zone free from non-conventional weapons.
Adaptation to specific circumstances
Nobody anticipated that the OPCW would ever have to evacuate CW from a state party under conditions of war. Such a situation never occurred before. Even the disarmament of Iraq during the 1990s took place after a cease-fire agreement, endorsed by the UN Security Council Resolution 687 (1991). Syria joined the CWC as a CW possessor state, which was also a first after the treaty-defined destruction deadlines had expired. As a consequence, the responsibility to determine Syria’s interim and final destruction deadlines fell to the Executive Council. Its decision of 27 September 2013 was an adaptation of the US-Russian framework agreement. That same night the UN Security Council endorsed the decision in Resolution 2118 (2013). However, given the virtual impossibility to destroy the CW inside a country at war and the extremely tight deadline to complete destruction operations, the EC adopted several exceptional measures in a second decision of 15 November, none of which are precedent-setting.
A first major departure from the standard CWC process concerns the initial declaration. Under Article III this document is due within 30 days after the convention enters into force for a state party and establishes a baseline for the country’s status as CW possessor, plans for the destruction of CW and related installations if so required, a description of any CW-related activities after 1 January 1945, the types of chemical facilities on its territory and the types and quantities of treaty-relevant chemicals they produce. Following that submission OPCW inspectors will verify the accuracy of the initial declaration, upon which the state party can submit amendments if so required. In practice OPCW staff will assist a country preparing to join the CWC with compiling the initial declaration and other measures to be undertaken (e.g., national legislation). In the case of Syria inspectors entered the country even before it had formally become a state party (i.e., 30 days after accession) and such an initial declaration was submitted. The Syrian government had agreed to the accelerated pace. While it enabled the OPCW to quickly secure key CW sites that were accessible (some were in combat zones or under the control of insurgents), prepare inventories and render the delivery systems and special equipment useless, it also created a situation in which the OPCW received a lot of information piecemeal. Combined with the chaos of war, Syrian claims of poor bureaucratic administration of the chemical programmes and quite possibly reluctance to cooperate in full, this led to quite a few corrections of the initial declaration and submission of fresh data. Within the Technical Secretariat a small Declaration Assessment Team was set up to raise questions based on the initial declaration, to identify the gaps, find discrepancies, and so on, in order to correct the declaration. In this way, the OPCW has been able and is still continuing to develop the full picture of Syria’s past CW capacities and programmes.
Under the terms of Article IV of the CWC, each state party remains the owner of the CW thatmust be destroyed, destroys those CW on its own territory, and pays for the destruction operations and the OPCW verification activities.Given the inability to destroy the CW inside a country at war and the extremely tight deadline to complete destruction operations, the EC adopted several exceptional measures, none of which are precedent-setting:
With the exception of one precursor chemical that had to be destroyed in-country, all warfare agents and other precursors were evacuated by sea from Syria.
Once they had left the territory, the international community as represented by the OPCW assumed responsibility for the toxic substances. The legal status of the weapons outside of Syria, and therefore the liability in case of a mishap, was never precisely determined.
The toxic substances were neutralised or hydrolysed aboard the specially adapted US vessel Cape Ray in the Mediterranean, and then transferred to commercial incinerators in Finland, the United Kingdom and the United States and a dedicated CW destruction facility in Germany.
Both the UN and the OPCW set up special trust funds to finance the operation as Syria claimed to be unable to pay for the destruction and verification costs. Many countries offered funds or contributed in kind.
The Executive Council vested the OPCW Director-General with the authority to launch a procedure similar in purpose to the challenge inspection, but without many of the procedural formalities detailed in the in the CWC. His decision was to follow a request by a state party and a personal judgement as to the seriousness of the allegation based on information supplied by the requesting state party. He could redirect inspectors working in Syria to the designated site of alleged treaty violation. Despite the difficulties in implementing the decisions regarding the CW disarmament in Syria and the many accusations of procrastination and incomplete declarations, nobody has so far requested such a special inspection.
For the time being Syria remains under a special disarmament regime and it may still take one or two years, depending on the level of cooperation from Damascus, before the country can become a ‘normal’ state party. Nobody can presently affirm the way in which the transition to normalcy will take place, but the assumption is that both the Executive Council and the UN Security Council will have to take decisions to that effect.
OPCW decisions were endorsed by the UN Security Council, which had also insisted on a role for the UN. (The OPCW is not one of the UN organisations.) In order to coordinate negotiations and assess various risk factors related to the inspections, preparation of transportation and the movement of the chemical substances across Syria to the northern port of Latakia, the OPCW-UN Joint Mission was established. (It completed its mandate on 30 September 2014.) Its head reported to both the OPCW and the UN Security Council.
The emerging challenge of opportunistic use of toxic industrial chemicals
Opportunistic use of toxic industrial chemicals occurs when a particular entity resorts to a mode of chemical warfare using toxic chemicals that are readily available at a chemical plant or storage site, but does not undertake steps to develop and produce such weapons. The types of agent thus used can range from extremely common chemical substances, such as chlorine (often used in liquid form for water purification), to compounds such as insecticides and pesticides that, just like sarin or VX, belong to the family organophosphates. A typical characteristic of opportunistic use of toxic chemicals is that the attacks cease as soon as stores have been depleted or access to other sources of supply cut off. Delivery is extremely crude, but some indicators suggest a development process for dissemination devices may take place to enhance the impact of the attacks.
Through the spring and summer of 2014 there were several reports of chlorine strikes in Syria. Barrel bombs filled with liquid chlorine were dropped on villages from helicopters, strongly suggesting that government forces were responsible for them. As chlorine (or any other toxic chemical) falls under the General Purpose Criterion (GPC) of the CWC, any use as a method of warfare is prohibited. With Syria a state party to the CWC, the OPCW launched an investigation of alleged use. The fact-finding mission arrived in Damascus on 3 May, five days after its creation by the OPCW Director-General. During an onsite investigation on 27 May the team’s vehicle convoy was hit by an explosive device and came under fire. While this part of the mission had to be discontinued, the investigators were able to collate considerable data by means of other techniques, including victim and witness interviews, analysis of medical records and discussions with medical staff, and the analysis of flight paths of helicopters and correlating them to the precise time and site of the barrel bomb attack. It presented three reports in June, September and December 2014. On 4 February 2015 the OPCW Executive Council’s decision formally determined that chlorine had been used as a method of warfare and condemned the acts as a major breach of the CWC. Even though the conclusion did not identify the culprit, it is clear that as a state party Syria bears responsibility for preventing any violation on its territory.
Other allegations of opportunistic use of toxic chemicals attributing responsibility to the Islamic State in Iraq and the Levant (ISIL) emerged during the second half of 2014. One such claim related to the intense fighting at Avdiko village, 12 km east of Kobani in northern Syria; the other incidents came from Iraq. These occurrences pose a special problem under the CWC. While a state party is responsible for the implementation of the CWC on its territory, the reported events took place in areas not under the control by the government. Moreover the way the alleged use was described in Avdiko, both the perpetrator and the victims were non-state actors, a situation that may potentially create a legal and practical vacuum. Under the terms of the CWC (Verification Annex, Part XI, §27), if use has been alleged on territory not under the control by the government of a state party, then the UN Secretary-General’s mechanism will apply. However, in view of the attacks on the OPCW investigative team in May 2014 and the reliance on the Syrian military for the security and safety of UN and OPCW personnel inside Syria, the question arises how a UN investigation would be able to access an area of intense fighting in which the government military play no role. Thus far no concrete ideas suggestion an international military force to be inserted into a UN member state for the sole purpose of protecting an investigative team have been put forward.
The arrangements made to enable the CW elimination in Syria are not precedent-setting. However, the whole process has demonstrated a willingness by the OPCW members to approach difficult and exceptional circumstances in a practical way and they have taken several decisions that deviated significantly from the letter of the CWC. This leads to a cautious optimism that if the international community were to request specific types of assistance in support of a nascent zone free of non-conventional weapons in the Middle East, the OPCW might agree.
However, any such optimism would dissipate fast if there were no serious indications that the two countries not yet party to the CWC—Egypt and Israel—were to show no inclination of acceding or ratifying the convention. After all, in Syria’s case inventiveness was also stimulated by the fact that on the same day Russia and the United States announced their joint framework agreement, Damascus deposited its instrument of accession with the UN Secretary-General and agreed to collaborating with the Technical Secretariat of the OPCW even before the treaty became legally binding on it. This fact alone already deviated from the standard process as foreseen in the CWC.
If Egypt and Israel were to embark on a range of CBM-types of activities to enhance transparency with regard to past and present CW activities and issues of concern, then the OPCW might be open to assist the process in a discrete fashion.
Particularly in view of the many emotional reactions to events in the Middle East, any scenario of OPCW involvement would require strong common purpose between Russia and the US, and at least tacit endorsement of their initiatives by the other P-5 members.
Other than that, the Syrian CW disarmament effort may well remain a truly exceptional case of international collaboration under exceptional circumstances with little bearing on other situations in the Middle East.
With ISIL moving into Egypt, a scenario of opportunistic use of toxic chemicals in that country cannot be wholly discounted. By staying outside of the CWC, Cairo denies itself certain international tools of assistance and cooperation that could help to counter the threat or mitigate the consequences of such an attack.