Is the Opcw Implementing the Cwc Definition of Chemical Weapons?

THE CBW CONVENTIONS BULLETIN News, Background and Comment on Chemical and Biological Weapons Issues ISSUE NO. 78 FEBRUARY 2008 Quarterly Journal of the Harvard Sussex Program on CBW Armament and Arms Limitation IS THE OPCW IMPLEMENTING THE CWC DEFINITION OF CHEMICAL WEAPONS? Julian Perry Robinson, Harvard Sussex Program The CWC Tenth Anniversary celebrations last year raised designed to cause death or other harm through the toxic expectations of a world free of chemical weapons. Thanks properties of such toxic chemicals when released as a result to the OPCW – its Member States, its policy organs and its of the employment of such munitions and devices – those Technical Secretariat — that world is drawing closer. Easing too are chemical weapons in the sense of the treaty. That is its arrival is an outcome that many people are anticipating, Article II.1(b). rightly or wrongly, from the Second CWC Review The Convention defines what it means both by purposes Conference. not prohibited and by toxic chemical in later paragraphs of The first essential for a world free of chemical weapons Article II. So its scope is clear. That purpose-based, toxicity- is elimination of CW stockpiles and the factories once used bound definition of chemical weapon underlies certain of the for making them. That is happening. But it conceals a second positive obligations set forth in the treaty, which are the actions essential: preventing resurgence of chemical weapons born that states parties are required to undertake – to destroy out of ‘dual use’ technology. Technology that can find their chemical weapons, for example, or to participate in the application for beneficial purposes as well as in chemical compliance-verification system, or to take certain specified weapons is becoming more varied and more widespread as “necessary measures”. And it is also used in the negative science-based enterprise advances within industrial econ- obligations: the prohibitions of activities involving chemical omies that are becoming increasingly globalized. weapons, including development, production, stockpiling, use Besides globalization, other pressures are pushing and the other activities identified for prohibition in Article I. resurgence. Above all there are the new utilities, and there- It is that test of purpose enunciated in Article II.1(a) that fore new value, for chemical weapons due to the changing allows peaceful activities involving dual-use chemicals to nature of warfare and other forms of violent conflict: continue unconstrained by the Convention. The same device counterterrorist chemical weapons, for example, and terrorist prevents the Convention from being locked into the technology ones too. These and other utilities may increase as technology that prevailed at the time of its conception a quarter of a advances. century ago. It is the means whereby the negative obligations Because the negotiators were far-sighted, protection – the prohibitions – are made sufficiently forward-looking to against resurgence in fact exists in the terms of the Chemical cope with novel types of chemical weapon neither anticipated Weapons Convention and therefore in the regime run by the by nor otherwise known to the original negotiators. Such OPCW. It comes from the provisions that set the compre- novelties are coming along right now and more must be hensive nature of the treaty, in particular from the way in expected, given technological change. which the Convention defines ‘chemical weapons’. In practice Yet whether this ‘General Purpose Criterion’ (as the device the protection follows from the manner in which states parties is known) will actually protect, whether it can actually guard organise their implementation of the Convention around that against adverse new technology, and whether it can also block definition. The key question now is whether the definition, in malign application of duality while at the same time leaving the way it is being used, is still good enough for the task. benign applications unconstrained, all of that depends on how The Convention uses two characteristics to specify the adequately one particular operational feature of the weapons to which its provisions apply: toxicity and purpose. Convention can be made to work. That feature is the division The purpose element gives the definition its breadth and hence of labour implicit in the Convention that entrusts to the OPCW sets the comprehensive character of the treaty. The toxicity element sets objective bounds. Toxic chemicals and their precursors, except when intended for purposes not prohibited under this Con- Invited Article ...................................................... 1-2 vention, as long as the types and quantities are consistent Book Reviews ....................................................... 3 with such purposes – holdings of toxic chemicals (or of any Report from Geneva ............................................4-26 chemical from which a toxic chemical can be made) that do not satisfy that test of purpose are thus chemical weapons in News Chronology August - October 2007 ........... 27-44 the sense of the Convention. That is Article II.1(a). Recent Publications ..........................................44-48 Munitions or devices that have been specifically February 2008 page 1 CBWCB 78 oversight of compliance with some obligations, and oversight Here, however, the picture seems clearer. The whole raison of other obligations to the states parties on their own. d’être of a Riot Control Agent is to produce “temporary More specifically, the challenge in the division of labour is incapacitation” unless the persons exposed flee from further its application to the positive obligation set out in the opening exposure. Yet there are people who assert that Riot Control of Article VI.2 – a positive obligation that expressly Agents always lie outside the category of chemical weapon incorporates the General Purpose Criterion: Each State Party – that they are not, in other words, “toxic chemicals”. shall adopt the necessary measures to ensure that toxic We are clearly in the presence here of words on whose chemicals and their precursors are only developed, meaning informed opinion can reasonably differ. And does. produced, otherwise acquired, retained, transferred or On RCAs in particular there is much discord even among used within its territory or in any other place under its friends of the Convention. Perhaps the opinion of the Scientific jurisdiction or control for purposes not prohibited under Advisory Board on what the definition of “toxic chemical” this Convention. means and does not mean would be good to have. That is the place in its text where the Convention There are two further aspects of the toxicity test that should operationalizes the General Purpose Criterion. Responsibility be noted here. for it is assigned not to the OPCW but to the states parties; First, nowhere in the definition of ‘toxic chemical’ are there and therefore, through Article VII.4, to their National quantitative elements – no mention of the amount of chemical Authorities. that must be applied in order for any toxicity it may have to In fact, however, the implementing legislation of only a become manifest. So the definition leaves our understanding minority of states parties has recognised this by conferring of ‘chemical weapons’ prey to the principle first stated by powers that would enable the designated National Authority Paracelsus in the Sixteenth Century: pretty much any and to supervise this obligatory application of the General Purpose every chemical is toxic if the dose is large enough. Moreover, Criterion. Because so many states parties have thus failed to the absence of quantitative criteria of toxicity means that the legislate adequately, the way in which the CWC is being Convention cannot apply only to “weapons of mass implemented does not in practice serve as well as it should to destruction”. Yet there are people who regard the Convention suppress resurgence of chemical weapons. The derelict states as though it were a WMD treaty – implying, therefore, that it parties are left without an important line of defence against is not applicable to chemical weapons that are not weapons adverse duality and against novel threats thrown up by new of mass destruction. That particular attitude, were it to spread technology. The defences of the rest of us, too, are weakened. through the processes of ‘creeping legitimization’ that can Terrorists, for instance, may in that absence find safe haven readily be observed in some quarters, would tend to negate for acquisition of otherwise inaccessible chemical weapons. the applicability to chemical weapons of fundamental prin- Here, it seems, is a gaping hole in the Action Plan on National ciples of international humanitarian law applicable in armed Implementation. The Review Conference will surely attend conflict: the precepts requiring that weapons be neither indis- to it. criminate in their effects nor treacherous in their nature, nor Besides purpose, toxicity is the other main element in the apt to cause superfluous injury. definition of chemical weapons. It is this element that makes The second aspect to note is that the definition of “toxic the Chemical Weapons Convention, in essence, a norm against chemical” is devoid not only of quantitative limitations but the weaponization of toxicity. What the Convention means also of qualitative ones. Above all, the toxicity it defines is by it is of paramount importance. not limited to lethal toxicity. The

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