THE CBW CONVENTIONS BULLETIN News, Background and Comment on Chemical and Biological Weapons Issues

THE CBW CONVENTIONS BULLETIN News, Background and Comment on Chemical and Biological Weapons Issues ISSUE NO. 38 DECEMBER 1997 Quarterly Journal of the Harvard Sussex Program on CBW Armament and Arms Limitation IMPLICATIONS OF THE US RESOLUTION OF RATIFICATION Amy Gordon Belfer Center for Science and International Affairs, Kennedy School of Government, Harvard University Overview approval of US implementing legislation. As a result of this The US Senate approved its resolution of ratification for delay, the United States has not yet submitted its industry the Chemical Weapons Convention (CWC) by 74 votes to declarations (required under Article VI), nor has it satisfied 26 on 24 April 1997, exceeding by 7 votes the required two- the CWC’s requirement (under Article VII) to establish thirds majority. By simple majority, the Senate approved “penal” legislation that would make a CWC violation also a 28 conditions to the resolution in a single vote (‘en bloc’) violation of US law. In addition, the US does not yet have and defeated 5 other conditions in individual votes. the benefit of the proposed implementing legislation’s addi- It is axiomatic that compromise was needed to achieve tional law enforcement tools against chemical terrorism, this result. Tradeoffs are often necessary to ensure suffi- nor is industry able to benefit from its protections. Until the cient support for Senate passage of resolutions of ratifica- US enacts CWC implementing legislation, it will be diffi- tion for arms control treaties. Nevertheless, such tradeoffs cult for the US to persuade others to submit declaration in- sometimes run the risk of impairing subsequent im- formation or meet a high standard for implementation and plementation. In this connection, some argue that the US compliance. Moreover, OPCW Director-General, José conditions will impede full and effective international im- Bustani, indicated at the second session of the Conference plementation of the CWC. of the States Parties on 1 December 1997 that those parties This article describes the conditions to the US Senate’s which have not submitted complete declarations face addi- resolution of ratification and addresses some misconcep- tional obstacles in pursuing other Convention activities, tions. It argues that the conditions to the US resolution do such as challenge inspections. present some operational implementation challenges, but still allow the United States to implement the CWC fully The Conditions and effectively. Nor will the conditions necessarily encour- The 28 conditions to the Senate’s resolution of ratifica- age others to avoid their CWC commitments, as some sug- tion center on five substantive themes. These focus on; 1) gest. In contrast, if any of the five defeated conditions had the Senate’s views; 2) reporting, consultation and notifica- instead been approved, the US would have been unable to tion of Congress; 3) financial and resource commitments; meet its obligations under the CWC and other countries 4) implementation tasks; and 5) US safeguards. (Some might have hesitated to implement the Convention fully. conditions include more than one theme.) They express the The basis for US implementation is the Convention it- Senate’s views on aspects of the CWC or issues the Senate self, the Senate’s resolution and the US implementing legis- believes have relevance to future actions on other treaties, lation. The United States and other states parties have the establish requirements that the Executive Branch keep the opportunity, indeed, the obligation, to promote the Senate informed and notify it of key developments once the Convention’s effectiveness through domestic implementa- CWC is in force, set parameters for financial or resource tion and responsible, active participation in the Organiza- tion for the Prohibition of Chemical Weapons (OPCW) in Guest Article by Amy Gordon 1–6 The Hague. To set a high standard for states parties’ com- Text of Russian CWC ratification law 6–8 pliance, the US must devote considerable effort and atten- tion to its own implementation efforts. Without the Progress in The Hague: 20th Quarterly Review 8–15 Senate’s conditions, this was already a formidable task. CWC ratifications and accessions 15 With the conditions, it is still more challenging. However, neither the Convention nor the Senate’s conditions pose in- Progress in Geneva: 1st Quarterly Review 16–21 superable obstacles to implementation. News Chronology: August–November 1997 21–39 To date, the most serious obstacle to effective implementation of the CWC is the long delay in congressional Recent Publications 40 commitments the US makes in connection with the CWC, of debts under Article VIII.8 is considered “beyond the establish requirements that have an impact on the way the control” of the Executive Branch of the US Government. US implements the Convention, and, finally, provide assur- • Condition 21 maintains that an agency of the US Gov- ances that implementing the CWC will not hamper the US ernment, the On-Site Inspection Agency, should have a ability to defend itself effectively. role in assisting US facilities that are subject to routine or challenge inspections under the CWC, as long as the facility owner agrees. This reflects a Senate view re- Senate Views garding US efforts to organize existing resources effi- These conditions express the Senate’s perspective on ciently to host international inspections at a wide array matters related directly to the CWC, its implementation and of military and civilian facilities. issues relevant to other Senate actions such as future treaty • Condition 24 affirms the Senate’s view regarding treaty ratifications. They reflect general concerns and interpretive interpretation, as expressed in Article 1(1) of the views of the Senate, with particular regard to the Senate’s Senate’s resolution of ratification for the Intermediate- constitutional prerogatives, such as the “power of the purse” range Nuclear Forces (INF) Treaty, which says that a and the Senate’s right to take reservations to treaties. Al- treaty will be interpreted in accordance with the com- though these conditions do not establish specific require- mon understanding of the President and the Senate at the ments for action, they serve as important guideposts, time that the Senate provides its advice and consent. especially regarding Executive Branch activities that could Such interpretations would be based on a combination of give rise to new resource requests or treaty commitments. the treaty text and authoritative representations from the Examples of conditions that contain the Senate’s views President or representatives with regard to the meaning are Conditions 1 (Effect of Article XXII), 12 (Primacy of or legal effect of the treaty. the US Constitution, 17 (Constitutional Prerogatives), 19 • Condition 25 indicates that the Senate intends to con- (Effect on Terrorism), 20 (Constitutional Separation of sider treaties which reduce or limit US armed forces in a Powers), 21 (On-Site Inspection Agency), 24 (Treaty Inter- militarily significant manner, pursuant to Article II, sec- pretation), and 25 (Further Arms Reduction Obligations). tion 2, clause 2 of the US Constitution. In other words, • Conditions 1 and 17 indicate the Senate’s view that it re- the Senate intends to apply the “advice and consent” tains the right to take reservations to treaties and that US process to these treaties, including the requirement for negotiators should not agree to exclude reservations. approval by a two-thirds majority. This refers implicitly (The CWC bars reservations to its Articles.) While the to other agreements, such as the recently concluded Senate stressed its right to take reservations to interna- ABM demarcation agreement, which the Senate consid- tional treaties, it chose not to do so in the case of the ers sufficiently significant from a military standpoint to CWC. deserve consideration as treaties under the referenced • Condition 12 states the Senate view that the CWC does provisions of the US Constitution, although they may not require or authorize any action prohibited by the US not actually “reduce or limit US armed forces.” Constitution. This view is generally supported by the CWC in Article VII (National Implementation Mea- sures), para 1, which requires each Party to implement Reporting, Consultation and Notification the CWC “in accordance with its constitutional pro- These conditions establish requirements that the Execu- cesses”, and in Part X of the Verification Annex tive Branch keep the Senate informed, notify it of key de- (Challenge Inspection), para 41, which requires parties velopments and consult regularly on important issues once to allow the greatest degree of access “taking into ac- the CWC is in force. The net effect of these conditions is to count any constitutional obligations it may have with re- help the Senate keep track of the status of implementation gard to proprietary rights or searches and seizures”. and compliance, as well as key developments that could af- • Condition 19 expresses the Senate’s view that the CWC fect US industry interests. Although, in some cases, these would not have prevented the terrorist use of chemical conditions include requirements for further action depend- weapons by the Japanese cult, Aum Shinrikyo. This ing on the substance of a report or notification, they gener- constitutes a commentary within a broader, ongoing de- ally reflect the recognition that appropriate policy responses bate regarding the potential use of weapons

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