Guest Post: Recapping the CWC Review Conference-Spotlighting Three Challenging Questions

[Onur Güven is a researcher at the T.M.C. Asser Institute in The Hague in the areas of arms control, disarmament and non-proliferation law.]

The Third Review Conference of States Parties to the Chemical Weapons Convention, taking place recently in The Hague from April 8-19, was a benchmark occasion to review the operation of the Chemical Weapons Convention (CWC) and evaluate related scientific and technological developments. Not only States Parties, but a broad range of stakeholders such as academia, the chemical industry and other members of civil society took part in the Conference and shared their views and ideas on issues concerning the disarmament and non-proliferation of chemical weapons (CW) and the peaceful uses of chemistry. This post will focus on three questions which proved to be challenging to produce consensus among States Parties until the eve of the Conference’s last day.

The first question was on how to address the existing reservations to the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of’ Warfare (1925 Geneva Protocol). Several States became party to the Protocol on the condition of reciprocity; limiting their obligations to the scope of States Parties only and/or reserving the right to respond in kind when facing CW and/or biological weapons (BW) use by another State or its ally. These reservations create a conundrum, however, when the reserving State is also party to the CWC which establishes a comprehensive framework on prohibitions under Art. I whereby reservations to the Protocol are deprived of any practical meaning for a deterrence policy. Moreover, there is ambiguity/sensitivity on certain reservations relating to Art. 20(1) of the 1978 Vienna Convention on Succession of States in respect to Treaties.

Russia and others proposed to include a paragraph to the final document which calls on States Parties to withdraw their reservations to the Protocol. This ignited a discussion on the interpretation of the Protocol with statements ranging from those underlining the recognition of the prohibition on CW and BW use during armed conflict as customary international law, to statements viewing the Protocol as being superseded by the CWC. The former statement failed to convince as the mere fact that the prohibition under the Protocol reflects customary international law does not of itself obstruct the establishment of a reservation as it is reflected the Guide to Practice on Reservations to Treaties of the International Law Commission. The latter statement was clearly in contradiction with the Preamble and Article XIII of the CWC, which recognise the complementary relation with and yet the independent status of the obligations under the Protocol.

States Parties reached a consensus on this question as reflected in Paragraph 9.31 in the operative clauses (Part B) of the Final Document of the Third Review Conference (RC3 Final Document). The initial paragraph on this question in the Draft Provisional Text of the Open-Ended Working Group only recalled actions which States Parties had taken to withdraw their reservations. It is unclear what was weighed in the negotiations as these happened in closed sessions of the Committee of the Whole and consultations which lasted until well after midnight on Wednesday April 17. It is clear that Paragraph 9.31 draws inspiration from Paragraph 44 of the Final Document of the Seventh Review Conference (RC7 Final Document) of the Biological Weapons Convention (BWC). The CWC RC3 Final Document does not, however, include a paragraph to stress the importance of the withdrawal of all reservations to the Protocol as adopted in Paragraph 43 BWC RC7 Final Document.

The second concern is the lack of discussion among CWC States Parties on incapacitating chemical agents (ICA). This term can be somewhat a misnomer for those unfamiliar with its concept. As Paracelsus’ famous principle states and is often repeated in CWC context: “the dose makes the poison”. The incapacitating property of a chemical agent is calculated in relation to the percentage of lethality it would produce when applied to a healthy group under certain standardised conditions with the aim to incapacitate almost everyone in the group.

While the CWC governs all toxic chemicals and their precursors (General Purpose Criterion) and prohibits all uses of these agents other than for purposes stated in Art II(9), including law enforcement and domestic riot control purposes, it remains unclear which status ICA’s should assume under the Convention as it provides no explicit definition on ICA’s as such. The closest reference can be found in the definitions of Art II(2) on toxic chemicals that can cause, inter alia, “temporary incapacitation”. Art. VIII(22) of the CWC provides the means to address ICA related developments, but the Conference of States Parties operates mostly by means of consensus whereby States Parties still would need to agree on starting discussions on this matter.

Several States’ views and proposals addressed ICA’s. The German statement on its decision to domestically limit the scope of toxic chemicals allowed for law enforcement purposes to only riot control agents (RCA) under Art II(7) of the CWC excludes any room for ICA’s. Such interpretation would, however, also defeat any other meaning to the use of toxic chemicals for law enforcement purposes other than RCA’s.  The British statement clarified that the UK neither holds nor develops any ICA’s and encouraged other States Parties to also declare their position on the matter. Such practice could, if observed by a significant number of States Parties, create more transparency on ICA’s through an informal method.

The Swiss statement also recognised the need for more transparency on ICA’s, positing that ICA’s could erode the Convention and proposed to start a more formalised and continuous discussion on the matter. Their proposal required a long time to gain support but during the last days of the Conference seemed somewhat certain to be adopted into the final document as the compromise draft enjoyed no substantive objections. The draft paragraph would provide the holding of meetings of governmental experts (somewhat reminiscent of the BWC Meeting of Experts) to discuss, on the basis of consensus, the application of incapacitating chemical agents for purposes not prohibited by the Convention. The proposal did not reach the text of the RC3 Final Document due the need of one State Party in particular to get final approval from the government in its capital city. Such approval could not reach the Conference before its conclusion on Friday night whereby the Swiss proposal was withdrawn for the sake of not impeding the consensus on other matters. ICA’s will remain a subject for additional review.

The third question was on how to address recent events in Syria: its threat to use CW in response to external aggression; the alleged use of CW in Syria; and the pending UN fact-finding mission on this issue. Prior to the Conference the Director-General had authorised, upon request of the UN Secretary-General, to share OPCW resources in preparation to and in the event of a fact finding mission in Syria on the alleged use of CW in accordance with the mechanisms of Part XI, Para. 27, CWC Verification Annex and Art. II, Para. 2(c), UN-OPCW Relationship Agreement. The fact-finding mission could not commence as there was disagreement between Syria and the UN Secretary General’s Office on the scope of sites subject to inspections.

Bearing in mind their determinations as codified in the Preamble of the Convention,  States Parties understood the need to address the alleged use of CW in Syria and the urgency of inspecting the site(s) on time. Main sources of disagreement were on the gravity of the text addressing the alleged use of CW in Syria, whether to adopt such text just under the political declarations (Part A) or to also include it in the operative clauses (Part B) of the final document, whether to address Syria’s threat of using CW which violates the spirit of the 1925 Geneva Protocol to which Syria is party and whether to address Syria to take certain steps with regard to the fact-finding mission and the security of its CW stockpiles. The latter two issues were deemed to be outside the purview of the OPCW.

Negotiations on addressing the other topics continued without any consensus on the morning of Friday April 19. It was only in the afternoon, after consultations, that States Parties could agree on the text addressing the alleged use of CW in Syria and support for the fact-finding mission as adopted in Paragraphs 9.18 and 9.19 under the Political Declarations (Part A) of the RC3 Final Document. In their final statements, several States Parties expressed their disappointment for the Conference not being able to adopt stronger language on the alleged use of CW in Syria and lacking any reference to its threat of CW use and the insecurity of Syrian CW stockpiles. Others celebrated the fact that the Conference was able to reach consensus on such a topic and that the language should not be underestimated as States Parties underline “that the use of chemical weapons by anyone under any circumstances would be reprehensible” [emphasis added].

The final question, whether the Conference has been successful, is difficult to answer at this moment. The Conference certainly managed to address reservations (on CW use) to the 1925 Geneva Protocol and some of the CW related events in Syria, and perhaps it produced important momentum for the future to start the discussion on the matter of ICA’s, but one could say that it lacks visionary language one would hope for in a review conference.