APPENDIX 29
Memorandum submitted by Professor J P
Perry Robinson, University of Sussex
1. This Memorandum addresses the third item
of the terms of reference for the Committee's inquiry into Weapons
of Mass Destruction: the progress and effectiveness of the 1993
Chemical Weapons Convention (CWC) and the 1972 Biological and
Toxin Weapons Convention (BWC). It is written from the standpoint
of an academic trained in chemistry and law and concerned about
militarisation of the life sciences, who since the 1960s has been
conducting research into public-policy aspects of chemical/biological-warfare
(CBW) armament and arms limitation.
2. Progress in relation to what, and effectiveness
on what yardstick? It was never the intention that these two treaties
should be stand-alone safeguards against CBW. Rather, their function
was to serve as consolidating influences within an array of other
anti-CBW measures. For the United Kingdom, once the Macmillan
government's secret decision to pursue chemical rearmament had
effectively been abandoned,[70]
the main element in this array has remained an alert and technologically
advanced protective posture against CBW weapons on the part of
the armed forces, with a watching brief for corresponding civil
defence. All such protection is expressly permitted by both treaties.
National intelligence machinery having at least some capacity
for monitoring foreign CBW capability is another element, as is
the national penal legislation that has conferred powers against
terrorists seeking access to CBW weapons. Special national export
controls have been added to the array as an anti-proliferation
measure, and in Brussels the United Kingdom took a leading role
in the formation of what in 1985 became the Australia Group, which
is an informal means for harmonising such controls among the main
exporting countries. Within all this, the primordial function
of the Conventions has been threefold: to assert a norm of abstention
from CBW armament; to reaffirm, as did the 1925 Geneva Protocol,
the ancient cross-cultural taboo against the use of poison and
disease as weapons; and to provide nuclei around which international
action against transgressors can crystallise. That threefold consolidating
influence in general, and the nucleating function in particular,
seem the proper yardsticks for the Committee's assessment of effectiveness.
3. The Conventions' provisions for compliance-vertification
and for what CWC Article XII calls "measures to redress a
situation and ensure compliance, including sanctions" are
the principal nuclei for promoting action by the international
community against transgressors of the norms against CBW armament
and its use for hostile purposes. In the application of these
provisions, the story thus far is not one of unmitigated success,
as the following episodes indicate:
(a) In 1981 the United States charged the
Soviet Union, Viet Nam and others with using toxin weapons ("yellow
rain") in Afghanistan and southeast Asia. In so doing it
disregarded the Article V consultation procedure of the BWC and
the Article VI complaints procedure, preferring instead the route
of "public diplomacy". The charges have not formally
been withdrawn, even though they have long since been discredited;[71]
(b) When, in October 1989, defector testimony
finally confirmed the existence and revealed the organisation
and scale of a clandestine bioweapons programme in the Soviet
Union, remedies were sought, not through the BWC itself, but within
the framework established by an ad hoc agreement among the three
co-depositaries of the treaty (the UK, the USA and the USSR);[72]
(c) Iraq was forced in 1991 to ratify its
May 1972 signature of the BWC as a condition of the Gulf-War ceasefire,
but when it became evident that its stocks of bioweapons had not
been destroyed within the subsequent nine months required by Article
II of the Convention, the matter was pursued within UNSCOM, not
BWC, machinery;
(d) Employment of chemical weapons by at
least four states parties has been alleged since the CWC entered
into force for them: India,[73]
Russia,[74]
Sudan[75]
and Turkey.[76]
Yet the allegations remain unresolved in the public record, notwithstanding
the verification capacity maintained by the treaty's international
oversight authority, the Organisation for the Prohibition of Chemical
Weapons (OPCW) headquartered in The Hague.
Nor, it should be said, is the story one of
unmitigated failure. The OPCW is having remarkable success in
building confidence that chemical-weapons disarmament really is
beginning, both among the main possessor states, and among those
others (for example, India) that have, in accordance with the
CWC, unexpectedly declared themselves to be possessors. A further
notable success came in 1997 with Cuba's invocation of BWC Article
V for consultations among BWC states parties on its allegation
that thrips infestations of certain of its crop cultivations had
been caused by a US act of biological warfare: formal cosultations
were duly convened, chaired by the UK, and, although they concluded
that "it has not proved possible to reach a definitive conclusion",
Cuba nevertheless expressed itself satisfied. Even so, the four
illustrations at (a)-(d) above suggest that improvements are needed
in the compliance-verification and associated arrangements of
both treaties if they are to fulfil their response-nucleating
and therefore deterrent role.
4. As is well known, views on how much verification
is enough change in response to changes in the wider political
and security environment. Back in the early 1970s, there was no
consensus that the incorporation of an international verification
system into the BWC would provide cost-effective augmentation
of the overall array of countermeasures against bioweapons. So
the verification arrangements of the BWC were limited to the consultation
and complaints procedures of Articles V and VI. But in the mid-1980s,
when persuasive evidence of Soviet noncompliance was beginning
to accumulate, abrogation of the treaty came to seem an increasingly
attractive option for some, including officials of President Reagan's
administration in the United States. This development, and the
subsequent revelations about the Iraqi bioweapons programme, evidently
stimulated the BWC's friends into remedial action: into determining
whether new technology and new forms of relationship between government
and biology-based industry could yield compliance-verification
machinery suited to the new context. Here, the lead internationally
was taken by the UK government, which had at its disposal exceptionally
competent and dedicated personnel resources in the FCO Arms Control
and Disarmament Research Unit and the MoD Chemical and Biological
Defence Establishment. Meeting in special conference in September
1994, BWC states parties decided to open negotiations to "strengthen
the Convention" including "possible verification measures".
For the past five years they have been working intermittently
on a draft BWC protocol, which, however, is still some good way
short of completion.
5. The CWC had been concluded in the meanwhile,
and had entered into force in 1997 with an elaborate verification
system. This system is characterised by a division of labour between
the OPCW on the one hand and, on the other hand, the National
Authorities set up by states parties as required by CWC Article
VII.4 in order to fulfil their obligations under the treaty.[77]
The system is not yet fully operational in all of its aspects.
That, perhaps is why states parties have not yet put it fully
to the test. So stringent, however, is the confidentiality regime
within which the OPCW is obliged to operate that it is impossible
for the outside world to observe and assess the actual performance
of the CWC verification system. The outside world, including this
Committee, must rely solely on assurances given by OPCW Director-General
José Bustani. It is no aspersion at all upon him or his
staff to describe this situation as unsatisfactory.
6. With the BWC Protocol still unfinished,
and with the CWC verification system not yet fully operational,
an experience-based assessment of the role and effectiveness of
BWC/CWC compliance-verification within the overall array of anti-CBW
countermeasures is not yet possible. Only a negative conclusion
can be offered here; the episodes noted in paragraph 3 above point
to a BWC/CWC treaty regime not as capable as it could be of nucleating
international action against transgressors. This has a disturbing
ramification. So deficient a regime could, on past experience,
suffer a sudden flight of international confidence if it were
to be confronted by allegations of grave noncomplianceirrespective
of whether the allegations were true or, as many in the past have
proved to be, false. The danger might then be that the treaties
would become a liability, not an asset, in the overall array,
[78]
in which eventually the norms themselves may erode.
7. This prospect has two implications for
policy. First, the BWC Protocol must be concluded as a matter
of high urgency, and it must be an instrument with real teeth,
not just another declaration. Second, the transparency of the
CWC regime must be increased: the OPCW must not be discovered,
should the crunch ever come, to be a sort of pre-UNSCOM IAEAits
challenge-inspection procedures unimplementable, perhaps, or its
inspectorate blind to chemicals not expressly on its control lists.
8. In both these respects what the United
States does is crucial. The main reason why the CWC verification
system is not yet fully operational is the great length of time
that country has been taking to open its civil chemical industry
to the forms of international inspection which the CWC requires
and to which most of the rest of the world's industry has now
been subject for two years. By mid-2000, however, this US lag
phase seems likely to have ended, in which case the way may then
be set for US industry to discover, as UK industry has apparently
already discovered, that erstwhile concerns about the impositions
of the control regime, and its possible threats to investment,
are mostly unfounded. US engagement with the BWC Protocol negotiation
could then become altogether more concerted and constructive than
has thus far been the case. Provided the currently awkward positions
of countries such as China and India can be accommodated, completion
of a satisfactory Protocol might be achieved not too far into
the post-Clinton era.
9. The UK, which occupies a key Friend-of-the-Chair
position in the BWC Protocol negotiation, has become obliged to
mediate between opposing blocs of allies within the Western Group.
In this and other tasks, the UK delegation needs all the support
it can get, not least protection against imposition of counterproductive
deadlines.
10. With regard to the needs of the CWC,
the UK is again in a position to contribute much. It is a member
of the OPCW Executive Council. It has a track-record of constructive
and expert participation in the affairs of the OPCW, including
resolution of both outstanding and pending issues. But because
the CWC has moved from negotiation into implementation, the UK
lead has passed from the FCO to the Department of Trade and Industry
(DTI), which is the designated National Authority for the CWC.
The UK National Authority (UKNA) has thus far submitted three
annual reports to Parliament, as required by statute,[79]
and is currently finalising its report on activities during calendar
year 1999. These reports have been drafted with close attention
to detail and, as Parliament recommended when making them statutory,
are now seen in draft by an advisory committee.[80]
How much Parliamentary attention they have then received is not
obvious from the public record.
11. The UKNA annual reports describe how
the UK is actually implementing the CWC, including those compliance-assuring
tasks which, through the division of labour noted in paragraph
5 above, fall to the National Authorities rather than the OPCW
Technical Secretariat. Such tasks extend to the UK obligation,
under CWC Article VI.2, "to adopt the necessary measures
to ensure that toxic chemicals and their precursors are only developed,
produced, otherwise acquired, retained, transferred, or used within
its territory or in any other place under its jurisdiction or
control for purposes not prohibited under this Convention".
Among the myriad toxic chemicals and their precursors that are
known to exist or that may yet be discovered, the OPCW Technical
Secretariat is sighted only towards those 29 chemicals and 14
families of chemicals that are listed in the CWC Annex on Chemicals
and on which state parties are therefore obliged to declare industrial
data to the OPCW and accept routine inspections to validate their
declarations. It is the National Authorities, therefore, not the
OPCW Technical Secretariat, that are primarily responsible for
implementing a provision of the CWCthe general purpose
criterionwhich for the reasons set out below in paragraph
12 is absolutely vital to the future of the treaty. UKNA, it goes
without saying, is fully aware of this. But the provision is not
at all easy or costless to implement, and it is important that
this be properly appreciated. UKNA's efforts to cope are worthy
of wider recognition and support, not least because, regrettably,
they are unmatched elsewhere. The UK has once again assumed a
standard-bearing role in the international BWC/CWC enterprise.
12. As in Article VI.2 just quoted, the
general purpose criterion is used in the CWC to define the scope
of the treaty.[81]
Through it, the CWC is not in fact a prohibition of chemical weapons
at all, but of particular purposes to which chemicals may be put.
The negotiators had two main reasons for adopting this approach.
First, many chemicals are "dual purpose" in the sense
that they can as well be used for chemical warfare as for beneficent
peaceful purposes; so the chemicals themselves could not be banned,
only certain applications of them. Second, if the treaty had simply
listed the substances whose purposes were to be controlled, it
could be overtaken by advances in science applicable in hitherto
unknown forms of CBW armament. The device of the general purpose
criterion in the CWC is copied from the BWC. To have focused the
treaties on weapons, not purposes, could have harmed activities
on which the well-being of society depended and locked the control
regime into the technology of its birth-time, technology which,
sooner or later, would become obsolete. The responsibility falling
upon the National Authorities in this regard is therefore great.
The danger against which it is directed, however, does not appear
to be an immediate one, so it may perhaps be taken more lightly
than is prudent. It is striking that the UKNA annual report for
1998the first in the series to receive glossy-brochure
treatmentmakes no express mention of it.
13. Indeed, if one is to be critical of
UKNA's performance thus far, one may deplore its propensity, evident
in the annual reports, for hiding its light under a bushel: for
seeming to conceal rather than candidly to describe what it has
been doing. True, the annual report is, strictly speaking, only
about the operation of the Chemical Weapons Act 1996; but the
purpose of that Act is to create powers enabling effective implementation
of the CWC in this country. Besides the general purpose criterion,
there is a second area in which a more informative annual report
could be particularly beneficial. CWC Article VII.4 requires each
National Authority "to serve as the national focal point
for effective liaison with the [OPCW] and other States Parties".
This aspect of UKNA's work has not been reflected in the annual
reports except as regards OPCW activities on UK soil. Liaison
is not a one-way process, yet the annual reports present none
of the information that must have been gleaned through it on what
other states parties are doing or on other aspects of the OPCW's
work. A unique opportunity is therefore being lost for keeping
Parliament informed about the progress and effectiveness of the
CWC regime. While it is true that the confidentiality provisions
of the CWC would limit the detail of such reporting by UKNA, they
do not require total silence. The OPCW's own annual report, whose
quality might benefit from such competition (see paragraph 5 above),
indicates this.
14. There is at the present juncture a particular
need for more informative reporting by UKNA. If, as seems inevitable,
the impending US presidential election imposes a hiatus upon the
BWC Protocol negotiation, there will be opportunity for considering
possible reorientations of the enterprise. For example, much of
industry concern about the inspection provisions being proposed
for the BWC Protocol has to do with biotechnological processes
whose products are chemical rather than microbiological. In the
particular form of "toxins" and of anything else describable
as toxic, such products fall within the scope of the CWC's general
purpose criterion. One option might therefore be to negotiate
an expansion of the OPCW verification system into biology-based
industry and so reduce the burden being placed on the projected
BWC Protocol. The Protocol's compliance-verification system as
applied to manufacturing industry might then even be limited to
sectors of the industry where the product is a listed biological
organism. But evaluating such options needs rather detailed information
about how the OPCW verification system in fact operates, on both
sides of its national/international division of labour.
15. In conclusion, one further recommendation
for action is offered for consideration. The BWC/CWC regime rests
on the 1925 Geneva Protocol, which outlaws use in war of CBW weapons
and whose 75th anniversary falls on 17 June 2000. The FCO has
actively been promoting the universality of both the BWC and the
CWC. Should not this anniversary year be occasion for a renewed
effort to ensure that all states that have bound themselves to
the Geneva Protocol also bind themselves to its implicit CBW disarmament
obligation, by joining both the BWC and the CWC? In this most
ambivalent of categoriescommitted to abstain from CBW but
not from CBW armamantare such states as Egypt, Iraq, Israel,
Libya, North Korea, Syria and Yugoslavia.
70 See, especially, G B Carter and G S Pearson, "Past
British chemical warfare capabilities", RUSI Journal,
February 1996, pp 59-68. Back
71
Julian Robinson, Jeanne Guillemin and Matthew Meselson, "Yellow
Rain: the story collapses", Foreign Policy no 68 (Fall
1987), pp 100-117. Back
72
See "10-11 September", Chemical Weapons Convention
Bulletin no 18 (December 1992), pp 12-13. Back
73
During the Kargil war last year: see "8 September [Jammu
and Kashmir]", The CBW Conventions Bulletin no 46
(December 1999), p 27. Back
74
During the still-continuing war in Chechnya: see "5 October
[Moscow]", The CBW Conventions Bulletin no 46 (December
1999), pp 33-34. Back
75
In southern Sudan during July and August last year: see "19
August [Sudan]", The CBW Conventions Bulletin no 46
(December 1999), p 24. Back
76
When CS munitions were used by the Turkish army in an attack on
a PKK position in southeastern Turkey on 11 May last year that
reportedly resulted in the deaths of 20 Kurdish fighters: see
"28 October [Turkey]", The CBW Conventions Bulletin
no 46 (December 1999), p 41. Back
77
On the division of labour, see J P Perry Robinson, "Implementing
the Chemical Weapons Convention", International Affairs,
vol 72, no 1 (January 1996), pp 73-89. Back
78
For example by continuing to consume resources that could better
sustain other elements of the array. Back
79
Chemical Weapons Act 1996, section 32. Back
80
HC Debs 23 Nov 95, cols 810-48; 6 Dec 95, cols 413-43; HL Debs
30 Jan 96, cols 1364-82; 27 Feb 96, cols 1428-48; 18 Mar 96, cols
1071-75; and 2 Apr 96, cols 148-51. Back
81
The main expression of the general purpose criterion is in Article
II.1(a), where it is said that the "chemical weapons"
of the Convention include 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. Back
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