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THE CBW CONVENTIONS BULLETIN News, Background and Comment on Chemical and Biological Weapons Issues ISSUE NO. 58 DECEMBER 2002 Quarterly Journal of the Harvard Sussex Program on CBW Armament and Arms Limitation “LAW ENFORCEMENT” AND THE CWC Any chemical comes under the prohibitions of the CWC international law that a state may enforce its own laws on if, “through its chemical actions on life processes it can its own territory or against its own citizens, but it may not cause death, temporary incapacitation or permanent harm to enforce its national law in the territory of another state humans or animals” –– unless it is “intended for purposes without that state’s consent. And third, no law can be not prohibited” under the Convention, and only as long as considered valid if it contravenes international “the types and quantities are consistent with such purposes”. humanitarian law or the established laws of war. It would Among the “purposes not prohibited” are “law be prohibited, for example, for a state to use toxic chemicals enforcement including domestic riot control purposes”. As to inflict death, temporary incapacitation or permanent harm for “domestic riot control”, the very term restricts it to on a national minority. activities in conformity with the domestic jurisdiction of the The foregoing principles are encapsulated in a guideline state party preparing for or conducting it. More than that, proposed in an article that appeared in the March 1997 issue the Convention goes on to require that chemicals held for of this Bulletin: riot control be restricted to those “not listed in a Schedule, The term “law enforcement” in Art. II.9(d) means actions which can produce rapidly in humans irritation or disabling taken within the scope of a nation’s “jurisdiction to physical effects which disappear within a short time enforce” its national laws, as that term is understood in following termination of exposure”. And the chemical international law. When such actions are taken in the name and structural formula of each such chemical must be context of law enforcement or riot control functions under declared in advance to the OPCW. the authority of the United Nations, they must be In contrast to these provisions regarding domestic riot specifically authorized by that organization. No act is one control, the only specific exculsion the Convention places of “law enforcement” if it otherwise would be prohibited on the identity of the chemicals that may be used for other as a “method of warfare” under Art. II.9(c). law enforcement purposes is that they not be in Schedule 1. Even with these several requirements under the CWC Neither is there any requirement for declaration to the and the suggested guideline defining law enforcement, there OPCW. Nevertheless, two of the fundamental restrictions is inadequate constraint against the misuse of chemicals for the Convention places on all chemicals apply equally to “law enforcement”. This appears to have originated in the those intended for law enforcement. requirement of one state to protect its practice of using toxic No chemical may be developed, produced, otherwise chemicals to inflict capital punishment as a means of law acquired, stockpiled, transferred or used as a method of enforcement. But that does not account for the lack of any warfare that is dependent on its toxic properties (Article provision for at least declaring the identity of chemicals held II.9(c)). It is prohibited, for example, for a state to use for law enforcement. Rather, it appears that what kept the weapons dependent on the toxic properties of chemicals in negotiators from including a declaration requirement was a civil war, claiming that the opposing forces are violating shortage of time under the pressure of the agreed August its national law or to use such weapons in a civil war in 1992 negotiating deadline for completion of the another state, with or without that state’s permission. Convention. Furthermore, any chemicals intended for law enforcement, along with their associated munitions or other delivery devices, must be of types and quantities consistent Editorial 1–2 with such purposes (Art. II.1(a)). The development, production, or stockpiling of chemical howitzer projectiles Forthcoming Events 2 would hardly conform to the notion of “law enforcement”. Invited Article by Mark Wheelis and Malcolm Dando 3–7 But what in the context of the Convention is “law Progress in The Hague: 40th Quarterly Review 8–19 enforcement”? Important guidance may be found in the term itself. First, there must be applicable law, as in a Report from Geneva: 18th Review 19–26 nation’s penal code or as specifically provided under the News Chronology August–October 2002 27–46 authority of the United Nations. Second, there must be Recent Publications 46–48 jurisdiction to enforce such law. Thus, it is recognized in What would be accomplished by advance declaration to calmatives (i.e., incapacitants). A declaration requirement the OPCW of the identity of chemicals held by a state for could help avert the erosion of public and official law enforcement? Secrecy in chemical weapons matters confidence in the Convention, and remove a possible has a special potential to evoke the sort of dread and stimulus to government chemical weapons programmes suspicion that undermines public confidence in the risked by excessive secrecy. Convention and may fuel renewed state interest in chemical With the approach of the First CWC Review weapons. An example of such suspicion was seen before Conference, scheduled for April 2003, the states parties the powerful chemical used in hostage rescue operations in have an opportunity to think carefully of measures the Moscow in October was identified as an opioid of the Conference might recommend to preclude the damage to fentanyl group — a class of compound that has long been the Convention that would result from not attending to the of interest to US and other armed forces for possible use as problem of law enforcement. Provisions of the CWC regarding chemicals that may be used for domestic riot control or for other law enforcement purposes Relevant provision “domestic riot control” other “law enforcement” purposes Types and quantities must be Article II.1(a) Article II.1(a) consistent with such purposes Must not be used or intended as a Article II.9(c) Article II.9(c) method of warfare dependent on its toxic properties Must not be in Schedule 1 Verification Annex VI.2 “Any chemical not listed in a Schedule Article II.7 For law enforcement chemicals other which can produce rapidly in humans than “riot control agents” there is no irritation or disabling physical effects such specification of properties which disappear within a short time following termination of exposure.” Chemical name and structural formula Article III.1(e) no declaration requirement must be declared Forthcoming events 9 January, Washington DC — 26–27 April, The Netherlands Biological and Chemical Threats — National Academies and Center for —19th workshop of the Pugwash A Crisis Management Challenge”, Strategic and International Studies Study Group on Implementation of details on www.nbc2003.org meeting “Scientific Openess and the CBW Conventions National Security”, details on 7–12 September, Dubrovnik, national-academies.org 28 April–9 May, The Hague — Croatia — CBRMTS – Industry III CWC First Review Conference [World Congress on Chemical, 28 February–2 March, Wiston Biological, Radiological Terrorism], 11–16 May, Bucharest — House, Sussex — Wilton Park details on www.asanltr.com CBMTS–Pharameceutical I, contact conference on Meeting the Threat of [email protected] Biological Terrorism, details on 10–12 October, Wiston House, www.wiltonpark.org.uk 20–22 May, Prague — CWD2003 Sussex — Wilton Park conference on [International CW Demil Chemical and Biological Weapons: 18–21 March, The Hague — Conference], contact the Threats of Proliferation and Use, Thirty-Second session, OPCW [email protected] details on www.wiltonpark.org.uk Executive Council. Further sessions — EC-33: 24-27 June; EC-34: 23-26 15–18 June, Jyväskylä, Finland — 20–24 October, The Hague — September; and EC-35: 2-5 Association of Finnish Chemical Eighth session, OPCW Conference December. Societies symposium “Nuclear, of the States Parties CBWCB 58 Page 2 December 2002 ON THE BRINK: BIODEFENCE, BIOTECHNOLOGY AND THE FUTURE OF WEAPONS CONTROL Mark Wheelis Section of Microbiology, University of California, Davis Malcolm Dando Department of Peace Studies, University of Bradford Introduction — the BWC and the Protocol consensus text had emerged, more than 200 pages in length. The 24th negotiating session convened on 23 July with The Biological Weapons Convention (BWC), signed in delegates expecting that a final text would result from their 1972 and entered into force in 1975, was the first treaty to efforts in that session, or at the latest in a concluding session ban the possession of an entire class of weapon of mass later that year. The opening plenary sessions extended over destruction. It prohibits the development, production, and three days, during which over 50 states parties spoke in stockpiling of microorganisms or of toxins for other than favour of prompt completion of the negotiations. Then it peaceful purposes, and it categorically prohibits was the turn of the US, and Ambassador Donald Mahley development, production, and stockpiling of devices brought that process to an end: designed to disseminate such agents for hostile purposes. It After extensive deliberation, the United

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