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Official-Series Document OPCW Executive Council Ninety-Sixth Session EC-96/NAT.6 9 – 12 March 2021 5 March 2021 ENGLISH and RUSSIAN only RUSSIAN FEDERATION QUESTIONS AND ANSWERS REGARDING THE PROPOSAL TO PROHIBIT THE AEROSOLISED USE OF CENTRAL NERVOUS SYSTEM-ACTING CHEMICALS FOR LAW ENFORCEMENT PURPOSES This document is aimed at analysing some key aspects of the draft decision submitted on behalf of 32 States Parties to the Convention on the Prohibition of Chemical Weapons (hereinafter “the Convention”) entitled “Understanding Regarding the Aerosolised Use of Central Nervous System-Acting Chemicals for Law Enforcement Purposes” (EC-92/DEC/CRP.9/Rev.5, dated 3 March 2021, and hereinafter referred to as “Understanding” or “draft decision”). This is needed to understand the aim of the draft decision, the possible consequences of its adoption by the OPCW as submitted (including for States Parties to the Convention), and what could be done so that the idea conveyed in the draft decision could be acceptable to the Organisation for the Prohibition of Chemical Weapons (OPCW). The topics of the questions have been chosen based on the outcome of the discussion of the draft decision with the States Parties to the Convention. Question 1: Which chemicals in this draft decision are considered central nervous system-acting chemicals (CNS-acting chemicals), for which the aerosolised use for law enforcement purposes is proposed to be prohibited? The proposed draft decision does not answer this question. The draft decision contains neither a schedule of CNS-acting chemicals, nor their characteristics or physiological properties of chemicals when they are exposed to the human body, according to which we could classify any particular chemical agents (chemicals/compounds) as a CNS-acting chemical, as the draft decision defines them. In this regard, we believe that the term “CNS-acting chemical” has been introduced into this draft decision artificially. During several presentations arranged in 2019 on the sidelines of the OPCW events by the co-sponsors of this document, examples of so-called CNS-acting chemicals mostly included anaesthetic agents, sedative agents, and analgesics, including fentanyl and its analogues. However, there was no reference to the fact that such chemicals fall within the scope of other international treaties, such as the Single Convention on Narcotic Drugs1 of 1961, the Convention on Psychotropic Substances of 1971, and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. The aforementioned conventions contain Schedules of narcotic drugs and psychotropic substances. These chemicals 1 As amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs of 1961. CS-2021-2849(E) distributed 18/03/2021 *CS-2021-2849.E* EC-96/NAT.6 page 2 are subject to control and verification mechanisms both at the national level by States Parties, and at the international level directly by the International Narcotics Control Board (INCB) and the World Health Organization (WHO). These schedules are updated and supplemented on an ongoing basis. It is also well known that a large number of chemicals, the so-called nerve agents, fall within the scope of the Convention. The principles for regulating such chemicals are detailed in the Convention. The Convention does not contain the term “CNS” (CNS as an object upon which a chemical agent acts only appears in the Convention on Psychotropic Substances of 1971). Additionally, it should be noted that the central nervous system (CNS) is connected to all organs and tissues of the human body by the peripheral nervous system. In this case, sensory nerves carry an impulse to the CNS from the peripheral receptors. Correspondingly, an impulse from the CNS is channelled through efferent nerve fibres to the cells of the executive working apparatus (i.e., the muscles, blood vessels, glands, etc.). In this context, the term “CNS-acting chemicals” is incorrect, because any chemical agent that affects human vital processes and body, including sensory organs, involves the CNS through sensory and diverting nerve endings, i.e. through the peripheral nervous system. At the same time, a CNS malfunction is always associated with the malfunction of other physiological systems of the human body. It should be stressed from the outset that the absence of the necessary definitions and a schedule of chemicals that fall under the draft decision creates a conflict of interest of the relevant international organisations implementing the objects and purposes of the aforementioned international treaties (conventions), including provisions for international verification of compliance with those treaties and conventions. Question 2: Is the proposed “understanding” regarding a prohibition of the aerosolised use of central nervous system-acting chemicals for law enforcement purposes consistent with the provisions of the Convention? The document submitted as an “understanding” is not in line with the current provisions of the Convention and goes beyond its scope. The main objective of the Convention is a total ban on the development, production, stockpiling, and use of chemical weapons, and their destruction. The Convention also does not prohibit the use of riot control agents (RCAs); it only explicitly prohibits using riot control agents as a method of warfare. From the perspective of international law, the term “understanding” could be classified as an agreement between the parties on some aspects of an existing international treaty. However, such an “understanding” may be reached only if at least the following two criteria are met: - the “understanding“ proposed for adoption stems from rules already established by an international treaty; and - the parties to the agreement have come to a consensus on the aspects in question that are the subject of the “understanding”. As for the submitted draft decision on regulating central nervous system-acting chemicals, there is no agreement on either the first or the second criteria. EC-96/NAT.6 page 3 In this regard, once again in the practice of the OPCW, we see a situation when a group of States not representing the majority of the Organisation's members (32 of 193 States Parties to the Convention) literally tries to push some “understanding” to legalise within the Convention an issue without any clear definitions. This is nothing but an attempt to substitute international law with dubious rules and decisions. This approach is absolutely unacceptable. Question 3: Will the adoption of the proposed draft decision of the OPCW entail new (previously non-existent) obligations for States Parties to the Convention? The mentioned draft decision entails new obligations for OPCW Member States due to the expansion of the legal framework of the Convention regarding both the subject matter of provisions and the scope of chemicals it covers. Its adoption will inevitably lead to new obligations for States Parties to the Convention. First, the draft decision calls for the “prohibition of aerosolised use of CNS-acting chemicals for law enforcement purposes”. At the same time, it needs to be recognised that the wording proposed in the draft decision affects the international, legal, and political interests of a State, determined by national legislation. To this end, States Parties will have to implement the adopted decision primarily on the national level by bringing their legislation in line with the new obligations; among other things, States will have to introduce relevant amendments to regulations governing the activities of and use of special means by law enforcement bodies. At the same time, the common approach to the implementation of this kind of decision on the international level remains highly questionable and depends to a great extent on the “understanding” the States Parties will reach, taking into account the lack of a generally recognised international treaty that defines the terms “law enforcement purposes” and “law enforcement”? Second, it is not at all clear what specific chemicals should be prohibited or for which specific law enforcement purposes their use would be prohibited. This lack of an internationally agreed interpretation of “law enforcement purposes” enables each State to define such purposes on the basis of its national legislation. Therefore, the “understanding” proposed by the initiators can only be a subject for comprehensive consideration of the issues as a whole. It seems that if States Parties to the Convention find compromise proposals, the subsequent development and introduction of relevant amendments to the Convention in line with paragraphs 1 – 3 of Article XV will be necessary. In this case, every State Party will have to assume obligations arising from such amendments through ratification procedures. Question 4: Will the adoption of this decision affect civilian industries, agriculture, pharmaceutics, medicine, and others? The draft decision uses the term “CNS-acting chemical”. This wording covers a significant number of chemicals within the purview of the Convention, and it is suggested that a large number of substances and groups of substances be included that are covered by other international treaties and widely used in medicine, pharmaceutics, pharmacology, veterinary medicine, chemical manufacturing, agriculture, and other sectors of the economy. At the same time, it needs to be understood that hundreds of thousands of such compounds used for the aforementioned aims are commercially produced all over the world. EC-96/NAT.6 page 4 Since 20072, the Scientific Advisory Board (SAB), under the Director-General of the OPCW Technical Secretariat has noted in its reports that a major goal of pharmaceutical companies has been the development of devices that would deliver insulin as an inhalable aerosol, and that would thus obviate the need for millions of diabetics to inject insulin. Some drug companies are also focusing on the lungs as a point of entry for the rapid administration of drugs to the central nervous system. The physical properties that promote rapid absorption through the lungs are similar to those that promote the penetration of the blood-brain barrier.
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