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The Chemical Weapons Convention - A Commentary edited by Krutzsch, Walter; Myjer, Eric; Trapp, Ralf (7th August 2014)

Part One Introduction and General Issues, The Chemical Weapons Convention—Objectives, Principles, and Implementation Practice

Walter Krutzsch, Eric Myjer, Ralf Trapp

From: The Chemical Weapons Convention: A Commentary

Edited By: Walter Krutzsch, Eric Myjer, Ralf Trapp

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 21 May 2019

Object & purpose (treaty interpretation and) — Disarmament — Weapons, chemical

(p. 2) (p. 3) The Chemical Weapons Convention—Objectives, Principles, and Implementation Practice

The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (the ‘Chemical Weapons Convention’, or CWC) is a landmark disarmament treaty and a crucial element in the development of international disarmament and arms control law. It is the first treaty to comprehensively and verifiably ban an entire category of weapons of mass destruction, and to that end establish a supervisory organization to monitor compliance with these commitments—an organization that has wide-ranging powers and uses methods of compliance management that are cooperative rather than adversarial.

The Chemical Weapons Convention stands in a long line of efforts to ban the use of poison as a weapon of war. Building on a customary norm that has evolved over the centuries, and that during the last two centuries was crystallized into treaty law, including in the Hague Conventions of 1899 and 1907 and the 1925 Geneva Protocol, the prohibition of chemical weapons is today widely considered to be part of customary international law. Their use by anyone (States and non-State actors alike), under any circumstances (international and non-international armed conflict, including in reprisal), has been characterized as a threat to international peace and security, and so has their acquisition by and proliferation to anyone.1

This commentary aims to provide an authoritative basis for the correct interpretation and application of the provisions of the Chemical Weapons Convention. Its purpose is to help to guide the work of the CWC’s supervisory organization, the Organisation for the Prohibition of Chemical Weapons (OPCW), and of the National Authorities of its States Parties. Correct interpretation, learning from experience (success and mistakes alike) and the adaptation of the implementation processes to changes in the security, economic, and science and technology environments wherein the treaty functions are all essential for the effective operation of the treaty.

To this end, we must first appreciate the historical context wherein the Convention has been negotiated and is being implemented.

A. The Historical Context of the Chemical Weapons Convention

The negotiations of the Chemical Weapons Convention were framed by the international system that evolved after the Second Word War. A mere 50 days after the end of the Second World War, in which 60 to 80 million people lost their lives, the (p. 4) representatives of nations assembled in San Francisco to establish the United Nations and agree its Charter, ‘determined to save succeeding generations from the scourge of war’.2 The concept of general and complete disarmament under strict and effective international control, including the prohibition and elimination of all types of weapons of mass destruction, became a common ambition of the international community. To this end, a set of basic principles evolved to guide negotiations and the application of arms control and disarmament agreements—principles that have steered the negotiations of the Chemical Weapons Convention and that continue to govern its application today:

  • •  the sovereign equality of all members of the United Nations as stipulated in Article 2.1 of the Charter;3

  • •  the principle that disarmament treaties must provide equal security for each member, whether big or small, rich or poor;4

  • •  the principle of friendly relations among nations.5

Over the decades, many efforts were devoted towards promoting the overall goal of general and complete disarmament under strict international control. A World Disarmament Conference convened by the United Nations in 1965 concentrated on nuclear weapons, especially a nuclear weapons test-ban treaty, and on the prohibition of chemical and bacteriological (biological) weapons. In 1978, a first UN Special Session on Disarmament developed principles for negotiations and measures in the field of disarmament.6 One of these principles was that:

[The] adoption of disarmament measures should take place in such an equitable and balanced manner as to ensure the right of each State to security and to ensure that no individual State or group of States may obtain advantages over others at any stage. At each stage the objective should be undiminished security at the lowest possible level of armaments and military forces.

Two further UN Special Sessions on Disarmament were held, in 1982 and 1988. They continued to work towards a comprehensive programme on disarmament, but, in the words of the Second Special Session, ‘developments since 1978 have not lived up to the hopes engendered in the tenth special session’.7 In 2003 and 2007, open-ended UN (p. 5) Working Groups worked on a possible Fourth Special Session on Disarmament. In 2008, the Non-Aligned Movement proposed to convene such a Fourth Special Session on Disarmament. Although little actual progress has been made towards the lofty goal of general and complete disarmament, an interesting development was that in these preparatory talks, support was registered for including in a future Fourth Special Session on Disarmament issues pertaining to the area where disarmament, international law, and international humanitarian law overlap.8

Whilst the concept of general and complete disarmament has seen some evolution, progress towards codifying practical steps remained curtailed to specific areas of weaponry, first and foremost nuclear weapons. To control the proliferation of nuclear weapons, the USSR and the United States in 1968 presented a joint draft Non-proliferation Treaty on Nuclear Weapons (NPT). The draft was revised after discussions in the Eighteen Nation Committee on Disarmament and with members of the Security Council, and subsequently opened for signature. Then UN Secretary-General U Thant stressed at the time that the NPT was a step towards disarmament; he therefore appealed to all countries to adhere to it.9 In practice, the NPT established different rights and obligations for States Parties possessing nuclear weapons and those that did not. It could not prevent States that had remained outside the NPT, or that withdrew from it, from acquiring nuclear weapons, and its unlimited extension has yet to lead into nuclear disarmament (in the meaning of, ultimately, their abolition rather than limitation).

The negotiations of the Chemical Weapons Convention took a different path—one towards a comprehensive and verified global prohibition based on equal rights and obligations by all of its parties.10 In 1969, the UN Secretary-General submitted a report to the General Assembly on ‘Chemical and Biological Weapons and the Effects of Their Possible Use’.11 One year later, the World Health Organization (WHO) published supplementary information12 to support efforts towards a comprehensive prohibition of chemical and bacteriological (biological) weapons. These initiatives reflected discussions in different bodies of a general ban of all chemical and biological weapons, to complement the obligations adopted under the Geneva Protocol of 1925 by prohibiting their development, production, and stockpiling, and ensuring their destruction.

This could not be accomplished, however, in one single step. Instead, States agreed first to ban biological weapons, and to continue their efforts towards banning chemical weapons as a second step. In 1971, the Conference of the Committee on Disarmament (CCD) achieved consensus on the text of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin (p. 6) Weapons and on their Destruction (the ‘Biological Weapons Convention’ or BWC).13 That treaty entered into force in 1975: it obliged its States Parties to continue negotiations towards an early agreement on an effective ban on chemical weapons in good faith.14

It took a further 17 years to conclude the negotiations of the Chemical Weapons Convention. Issues that needed to be resolved included: whether the ban was to be comprehensive and complete, or partial; whether there would be verification by on-site inspections and how such inspections could be implemented in military as well as industrial facilities; how confidential business information as well as military secrets unrelated to chemical weapons could be protected; how concerns about possible non-compliance could be addressed and resolved; and what kind of international organization would be set up to supervise the implementation of the treaty.

In 1992, in a period of optimism that followed the end of the Cold War, the Conference on Disarmament finally agreed on the text of the Chemical Weapons Convention. As expressed in the Convention’s preamble, its States Parties are ‘[d]etermined to act with a view to achieving effective progress towards general and complete disarmament under strict and effective international control including the prohibition and elimination of all types of weapons of mass destruction’ (paragraph 1), while at the same time ‘desiring to contribute to the realization of the purposes and principles of the Charter of the United Nations’ (paragraph 2 – in the main a reference to the maintenance of international peace and security). The Convention was endorsed by the UN General Assembly in November 1992, and opened for signature in Paris in January 1993. After four years of work of the Preparatory Commission in The Hague (today the seat of the OPCW), the treaty entered into force on 29 April 1997. At the time of writing, it has achieved near-universal adherence, with 190 States being party to it and a mere six States absent.15

B. The Chemical Weapons Convention

The provisions of the CWC can be broken down into building blocks that relate to the different Articles and related Annexes of the Convention, and their underlying concepts. The following is a concise overview to help the reader appreciate the Convention’s overall structure and content.

I. The scope of the CWC and its prohibitions—Articles I and II

The nature and range of the provisions of the Convention are determined by the importance and breadth of the use of chemicals in industry, agriculture, and society. Toxic and precursor chemicals are omnipresent in modern life, and their use as such cannot be prohibited. Yet, when used as chemical weapons they must be subject to the prohibitions of the Convention. The general principle applied by the Convention to achieve this is sometimes called the General Purpose Criterion: all toxic chemicals and their precursors are prohibited chemical weapons, except where indented for purposes not (p. 7) prohibited. This approach was necessary to ensure the general and comprehensive prohibition of all weapons that use toxic chemicals, while at the same time allowing the use of toxic chemicals for purposes not prohibited. It signals a basic choice: toxic chemicals will be used for the well-being of humankind only, and the use of poison as a weapon is prohibited without exception, today and in the future.

Article I sets out the comprehensive prohibitions and general obligations: States Parties undertake not to use, develop, produce, stockpile, or transfer chemical weapons. They are obliged to destroy all of their chemical weapons (CWs) and chemical weapons production facilities (CWPFs). The wording ‘never under any circumstances’, in Article I, excludes any exception from these prohibitions.16 In this way, the prohibitions of the Chemical Weapons Convention complement the prohibitions of the Geneva Protocol of 1925 on the use of chemical weapons.

Article II ensures the comprehensive nature of these prohibitions, by defining chemical weapons based on the formula of the General Purpose Criterion explained above.

Article VII extends these prohibitions, which bind the States, to natural and legal persons that come under the jurisdiction of a State Party (including natural persons abroad).

II. Chemical weapons disarmament

Articles III, IV, and V translate the disarmament undertakings assumed by the States Parties, under Article I, into practical, verifiable steps. Disarmament starts with data exchange for which States Parties are required to declare their existing chemical weapons and their past and present chemical weapons production facilities. It then requires eliminating such weapons and facilities within prescribed time-frames under strict international control.

III. National implementation

Article VII requires States Parties to adopt the measures necessary for them to implement the Convention. In addition to the enactment of penal legislation to enforce its prohibitions for all natural and legal persons that are subject to their jurisdiction, national implementation also includes other legislative, regulatory, and administrative measures needed to apply the requirements of the Convention. For example, the collection and submission of declarations pertaining to the chemical industry and the conduct of on-site inspections in industry require a regulatory framework and practical preparations by governments, as well as companies, to implement them.

Article VI and the related Parts VI to IX of the Verification Annex regulate legitimate activities in the field of chemical industry. In contrast to the approach taken in Articles IV and V, Article VI articulates a ‘right’ of each State Party ‘to develop, produce, otherwise acquire, retain, transfer and use toxic chemicals and their precursors for purposes not prohibited under this Convention’. This right is not unqualified: States Parties are required to take measures to ensure that toxic chemicals and their precursors are only developed, produced, and used for legitimate purposes. To achieve this, Article VI subjects schedule chemicals and chemical production facilities to verification measures, which are being implemented by the Technical Secretariat.

(p. 8) IV. International verification17

One of the novel features of the CWC is that it creates a non-discriminatory system of verification to ensure compliance with its terms. Proposals for verifiable disarmament regimes had been made since the League of Nations, but this was the first time that a multilateral verification system for disarmament was created. Designing such a system was an intricate problem that was solved incrementally over the entire negotiation period. Agreement on a ‘combination of national and international measures’ (1982) was followed by agreement on on-site verification of the destruction of CW production facilities, and of the destruction of chemical weapons. The agreement in principle on on-site inspections in the chemical industry first materialized during 1986/87. The issue that attracted most controversy was that of challenge inspection. By 1989, the Soviet Union and the United States had announced identical positions on this most intrusive fact-finding mechanism, at a level of general principle. However, it took until the very end of the negotiations to translate this agreement in principle into treaty text.

There is no other subject of the Convention that has been developed in more detail in the treaty text than verification. The aim was to create a system of supervision that could ensure the provision of sufficient information about compliance, while protecting the security interests of the States Parties as well as the business interests of their industries. The verification provisions are mostly set out in the Verification and Implementation Annex (‘Verification Annex’), often intertwined with related obligations. Provisions dealing with general aspects of verification are contained in Parts I, II, and III. Parts IV(A) and V relate to the verification of the disarmament obligations. Part IV(B) is a related set of provisions dealing with old and abandoned chemical weapons. Parts VI to IX cover the verification of activities and facilities for purposes not prohibited, including in the chemical industry. Challenge inspection is regulated in Article IX, paragraphs 8 to 25, and in Part X of the Verification Annex. Part XI, finally, contains the procedures for investigations of alleged use of chemical weapons. Further provisions that govern verification measures are contained in the Annex on Chemicals and the Annex on the Protection of Confidential Information (‘Confidentiality Annex’).

V. Compliance management by the Organisation

The Organisation for the Prohibition of Chemical Weapons (in the text of the Convention referred to as ‘the Organisation’, in practice the ‘OPCW’) was established to ensure the implementation of the CWC’s provisions. The OPCW is an independent international supervisory organization within the UN system, but not a specialized UN agency. Article VIII comprises all statutory provisions for this body in which the States Parties consult and cooperate to promote the achievement of the object and purpose of the Convention. Other provisions relevant to compliance management are contained in Articles IX, XII, and XIV, and in the Verification Annex as well as the Confidentiality Annex.

1. Statutory provisions

By virtue of Article VIII, the OPCW has three organs:

2. Consultation, cooperation, and fact-finding

Article IX sets out the Convention’s principles for consultation, cooperation, and fact-finding available to prove by establishing the facts whether activities are intended for purposes not prohibited and so to resolve any doubts States Parties may have about other States Parties’ compliance with their obligations. Each State Party can trigger consultation and cooperation to overcome such situations and, if required, request action of the Executive Council. These different mechanisms range from bilateral consultations to multilateral procedures using different modalities for problem resolution, involving the Executive Council, the Director General, and the Conference of the States Parties. The procedure for challenge inspection is the final means of demonstrating compliance or non-compliance enabled by the provisions of Article IX, but has yet to be used in practice.

3. Re-establishing compliance and settlement of disputes

Article XII deals with situations when non-compliance has been established and the OPCW—or in cases of particular gravity, the UN Security Council and/or the General Assembly—need to consider taking measures to persuade a non-compliant State Party to take action to conform with its treaty obligations.

Article XIV deals with other kinds of disputes between States Parties, or between a State Party and the OPCW, and provides for settlement of dispute procedures.

(p. 10) 4. Compliance management by the OPCW

This set of provisions (Article VIII—statutory organs and their powers and functions; Article IX—cooperation, consultation, and fact-finding; Article XII—measures to redress a situation and ensure compliance including sanctions; Article XIV—settlement of disputes) creates a regulatory and procedural framework to manage compliance concerns, ensure continued compliance of all parties, and encourage States Parties that have for whatever reason failed to comply fully with their obligations to take the measures necessary to return to full compliance without delay.

VI. Protection of confidentiality

The protection of confidentiality is a particular feature of the Convention. With regard to State secrets, provisions to protect confidentiality were necessary by virtue of the Convention’s far-reaching verification provisions (in particular, the provisions on challenge inspection that can also be invoked for undeclared facilities, including secret military installations). At the same time, the Convention’s provisions on international verification affect the chemical industry and its legitimate activities, and consequently in many States Parties reach into the sphere of private business.

The Confidentiality Annex creates a strict regime to protect confidential security information of States Parties as well as confidential business information. The latter was also essential with regard to the support of the chemical industry. Maintaining confidentiality is central to the Convention’s system of supervision and essential for the confidence of the States Parties in the proper functioning of the verification system, thereby creating a confidentiality regime with special responsibilities for the Director-General and a special dispute settlement body, namely the Confidentiality Commission as a subsidiary organ of the Convention (paragraph 23 of the Confidentiality Annex).

VII. Adaptation to change

The CWC was negotiated in a particular historical context, and its provisions were based on the experience with the chemical weapons programmes of the Cold War and previous decades. It is, however, of unlimited duration. The measures implemented by the Technical Secretariat to verify compliance, and equally the national measures applied by the States Parties to ensure that toxic chemicals and their precursors are not used for chemical weapons purposes, will therefore have to be adapted to advances in science and technology and changes in the chemical industry.

To this end, the CWC contains a number of provisions that allow adaptation of its implementation mechanisms to new development. These can be found in Article VIII (the conduct of Review Conferences every five years; provisions pertaining to the responsibilities of the policy-making organs and the Technical Secretariat, and to the role of the Scientific Advisory Board to render specialized advice to the Director-General, and through him or her to the policy-making organs and the States Parties), in Article XV (with regard to the ‘change procedure’ that allows the modification of technical and administrative procedures in the Annexes of the Convention so as to ensure the Convention’s viability and effectiveness), and the Annex on Chemicals (which is always to be adapted using this change procedure).

(p. 11) VIII. Relationship to the Biological Weapons Convention

The provisions of the CWC on its relationship with the BWC (Preamble, paragraph 5 and Article XIII) mirror those of the BWC (Articles VIII and IX) and reflect their shared origin (inter alia, the 1925 Geneva Protocol).23 This close legal relationship of the regime that prohibits biological and toxin weapons, and the one prohibiting chemical weapons, is gaining increasing levels of importance by the convergence between chemistry and biology in the domain of the life sciences, and by the increasing overlap of their corresponding industries. This convergence may require combined action of both implementation systems, and poses conceptual questions about legal consequences for both treaties.

C. Drivers that Shape the Implementation of the Convention

The negotiation of the Convention’s text took more than 25 years. This hard-bargained-for, precious instrument of international law, both a unique contribution to the development of arms control law and a strengthening of international humanitarian law, must be fully implemented. There are today more than 15 years of practical experience with applying the provisions of the Convention, and of numerous decisions taken by the OPCW on interpretation and implementation matters. While some of these practices and decisions have helped to promote the object and purpose of the Conventions, others require a critical appraisal, and some call for change.

I. The Convention’s policy-making organs

By joining the treaty, States Parties subscribe to is object and purpose, and at the same time to furthering a rule-based, democratic, non-discriminatory international system that is firmly set in respect for the law. The States Parties are central to the implementation practice under the Convention, and their collective responsibility is to manifest itself in the work of the OPCW’s policy-making organs (Conference of the States Parties and Executive Council).

An important aspect of the work of these policy-making organs towards the common goals of the States Parties is their collective decision-making in accordance with the principles and rules of the Convention. However, decision-making by consensus only, in a manner that renders unanimity a condition for decision-making (the practice adopted by the OPCW), is inconsistent with the letter and spirit of the Convention and has become an obstacle for its full and effective implementation. It comes as no surprise that previous Review Conferences did not recognize this, for their decisions were also taken by consensus only.

In its final document, the Second Review Conference encouraged the OPCW to continue with taking decisions by consensus only. Five years later, the final report of the Third Review Conference ‘noted with satisfaction the prevailing practice of and the commitment by the States Parties adopting decisions by consensus, which had played an important role towards the achievement of common goals and had strengthened the authority of the Convention’. As a direct consequence of this practice, an important (p. 12) Swiss proposal to initiate discussions aimed at correcting a state of non-compliance with the Article I prohibition of chemical weapons, strongly supported by several other States Parties, was not even mentioned in the final document because one State Party did not support the proposed language. This is an example of how decision-making can be undermined by one or several State(s) Party/ies, effectively creating a veto power. This policy is bound to undermine the foundations of the Convention; it is contrary to its object and purpose and States Parties should abandon it.

II. The role of science and technology

The revolution in the life sciences has brought about significant changes in the science and technology base underlying the Convention. Some of these advances facilitate verification or provide new opportunities for the protection against chemical weapons. Others, however, could have the potential to undermine core prohibitions of the treaty.

To take account of these changes and adapt the verification system to new requirements, the Convention uses the concept of ‘risk to the object and purpose’. ‘Risk’ is used:

  • •  to designate chemicals to the Schedules;

  • •  in the order of destruction of chemical weapons;

  • •  in the decision-making concerning the conversion of former CW production facilities for purposes not prohibited;

  • •  in the determination of the inspection frequency to be applied to facilities covered under Schedules 1 and 2; and

  • •  in the declaration for verification purposes of mixtures containing Schedule 2 or 3 chemicals.

But the concept is also implicit in many other verification-related provisions of the Convention, and in many decisions taken by the OPCW.

III. The concept of ‘risk to the object and purpose of the Convention’

‘Risk’ is normally understood to be the product of the consequence and probability of a harmful event. In the context of the Convention, ‘risk to the object and purpose’ of the Convention means that ‘activities, facilities, items of equipment and chemical compounds are addressed with respect to whether and how they might affect the overarching objective of CW disarmament within prescribed time-frames as well as the possibility of the re-emergence of new CW’.24

Such risks to the object and purpose of the Convention change over time. In the early years of implementing the Convention, much of the risk was determined by the size, nature, and conditions of the chemical weapons stockpiles and production capabilities still remaining. There are also risk factors associated with the absence of certain States from the regime (in particular, if they possess chemical weapons capabilities), and with uncertainties as to whether all States Parties fully comply with it (whether there are undeclared CW stockpiles or production facilities; and whether the possessor States Parties are committed to eliminating their stockpiles and production capacity in accordance with the Convention’s requirements). Although some aspects of this risk assessment (p. 13) are subjective, involving political assessments that may differ between States, many factors are of a technical nature and can be assessed objectively by the Technical Secretariat.

Over time, with progress being made in the elimination of CW stockpiles and destruction or conversion of CW production facilities, and with advances in universal adherence to the Convention, this balance in risk factors changes. The risks associated with the still-remaining CW stockpiles and production facilities begin to shrink, while risks associated with activities that affect the implementation of the Convention, or that could lead to the emergence of new types of chemical weapons, gain in weight.

In the chemical industry, advances in technology and changes in manufacturing structures and trade patterns have significantly altered the environment wherein the Convention is being implemented. In the course of legitimate research and development, new chemical compounds are being discovered that may be relevant to the object and purpose of the Convention. New processes and technologies are affecting the ways in which toxic chemicals and their precursors can be manufactured on an industrial scale. There is convergence between the chemical and biological sciences, which is challenging our traditional understanding of the boundaries between the regimes that govern, respectively, the prohibition of chemical and biological weapons.

This is why the Convention needs effective science advice, including from its Scientific Advisory Board and national as well as international scientific organizations, and it needs the willingness of its parties to take the decisions necessary to adapt, when necessary, the way in which the provisions of the Convention are applied in practice. Timely adaptation calls for effective decision-making by the OPCW’s policy-making organs, and it requires a new quality in the interaction between the OPCW and civil society, including chemical industry.

IV. Civil society and the chemical industry

Civil society has supported actively the negotiations that finally led to the adoption of the CWC in 1992. As early as 1970 to 1972, the Stockholm International Peace Research Institute (SIPRI) hosted an East–West expert working party on phosphorus accountancy that studied the possibilities of verifying the non-production of nerve agents. Since 1974, the international Pugwash movement has been organizing workshops to discuss policy, legal, and technical issues of chemical weapons disarmament. But the impact of civil society went well beyond providing technical expertise. A key example was the 1989 International Government-Industry Conference against Chemical Weapons in Canberra (Australia), which underlined the full support of the world’s chemical industry for a global ban on chemical weapons. This support of civil society, including the chemical industry, was critical to the ratification of the Convention by many countries.

After the entry into force of the CWC, the relationship between civil society and governments as well as the OPCW underwent an important change. Some non-governmental organizations (NGOs) took on the role of ‘service providers’ to help with the implementation of the treaty, for example by publishing reviews and analyses in the CBW Conventions Bulletin,25 or preparing briefing books for Review Conferences and (p. 14) meeting summaries of annual sessions of the Conference of the States Parties. At the same time, the chemical industry opened its plants and training facilities for OPCW inspector training. Today, it supports the OPCW Associate Programme. A productive relationship has evolved between the OPCW Scientific Advisory Board and the International Union for Pure and Applied Chemistry (IUPAC), bringing valuable scientific input to the OPCW.

Traditionally, disarmament was seen as the prerogative of States and governments, a question of national security. As global chemical weapons disarmament moves from weapons elimination to prevention, this is changing. Managing the risks of advances in science and technology to prevent the re-emergence of chemical warfare requires a different engagement with civil society.26 It is becoming a partner of governments and the OPCW in the implementation of the CWC. It represents the voice of reason, expressed by citizens locally, nationally, and globally. Their voices provide consciousness of global values and norms, of which states are not the only designated guardians. Their involvement is vital for governance to become effective and inclusive. They contribute to accountability, global governance, and greater legitimacy. At the same time, they themselves must demonstrate maximum transparency and accountability in the way in which they operate.

Many of the principles for civil society engagement with multilateralism that have evolved in recent decades are also relevant to the changing form of engagement between civil society and the OPCW and its Member States.27

The Third Review Conference recognized the need for an enhanced role to be played by civil society in achieving the goals of the Convention. It ‘[encourages] the Secretariat and the States Parties to improve interaction with the chemical industry, the scientific community, academia, and civil society organizations engaged in issues relevant to the Convention, and the Secretariat and States Parties to develop a more open approach, in conformity with the Rules of Procedure of the policy-making organs with regard to such interaction’.28

Globalization and the accelerating pace of scientific development require the contribution of civil society and chemical industry to implement the total ban of chemical weapons in all parts of the globe. This will reinforce accountability of governments and (national as well as international) civil servants for meeting their responsibilities under the Convention, implementing its requirements, and responding effectively to any gap in implementation and any case of non-compliance. At the same time, compliance at the level of individuals as well as institutions in research, development, chemical industry, and other parts of society cannot be ensured through the law alone. This increasingly requires the active contribution of these actors in society to a broader governance approach. Rules of behaviour that are based on humanitarian ethics must govern the development, production, trade, and use of toxic chemicals. Any case of non-compliance (p. 15) must be remedied in a manner that redresses the situation and ensures compliance, as foreseen in the Convention. This can only be achieved with full engagement between governments, the OPCW, and civil society, including chemical industry.

D. About this Book

I. The purpose of this commentary

This commentary is directed at scholars and practitioners in international law, and particularly at those specializing in international disarmament and arms control law. It also addresses individuals and organizations involved in treaty implementation. It explains the provisions of the Convention, analyses State practice in applying them, and provides authoritative and systematic commentary on legal matters and implementation experiences. Its aim is to assist with the correct implementation of the treaty as well as consider whether, and if so how, implementation of the treaty should be adapted to developments in science, technology, industry, and society at large. The commentary also aims to assist in creating a more inclusive and participatory approach for the scientific community, chemical industry, and other parts of civil society, including NGOs.29

II. How to use the commentary

The commentary is a systematic treatise of all provisions of the Convention in their context. Its structure therefore follows, as closely as possible, the text of the Convention itself. Because the Convention’s text often refers to the same subject in more than one place, for example in an Article as well as in one or more of the Parts of the Verification Annex, some repetition was unavoidable. As with the Convention itself, the reader will have to consult such complementary provisions in order to gain a comprehensive view on what applies to any particular issue. The commentary will guide the reader in this regard with, inter alia, an index and cross-references.

There is also a bibliography that will guide the reader towards key publications in the literature.

A fresh development at the time of writing was the accession in September 2013 of the Syrian Arab Republic to the Convention. The measures adopted by the OPCW and the United Nations to eliminate Syria’s chemical weapons pose a range of legal and practical challenges, given the uniqueness of the situation and the complexities of applying a disarmament treaty during times of civil war. It would, however, have been premature to reflect on these developments in the different chapters of the commentary. At the same time, Syria’s chemical weapons disarmament is a critical test for the effective functioning of the Convention, and could not be ignored. Therefore, a separate Annex was included to show how the provisions of the Convention can be applied to the Syrian chemical weapons disarmament project, how existing implementation experience may be relevant to this case, and where new answers and solutions are needed given the unique circumstances.

(p. 16) III. Disclaimer

This is a multi-author volume with contributions from a wide range of authors who provide specialized commentary on their respective topics. It was the responsibility of the editors to ensure consistency and a common approach towards the understanding of the Convention’s objectives and provisions, as set out in this Introduction. Each author, indicated at the end of each chapter, is solely responsible for the specific issues discussed in his or her respective contribution.

walter krutzsch, eric myjer, and ralf trapp


1  This was most clearly expressed by Security Council Resolution 2118 (2013). Although this resolution was adopted in the exceptional circumstances of the confirmed chemical weapons use during the civil war in Syria, the resolution as such can be regarded as a landmark with regard to banning chemical weapons. It also reaffirmed the earlier Security Council Resolution 1540 (2004) that prescribed legislative commitments to all UN Member States to refrain from providing any form of support to non-State actors in the acquisition of, inter alia, chemical weapons and related materials.

2  The use of the atomic bombs at Hiroshima and Nagasaki showed what the consequences could be if the endeavour to prevent war and achieve disarmament would not succeed.

3  This principle is reflected in the CWC’s general obligations under Article I, the provisions on national implementation in Article VII, the rights and obligations of members of the Organisation set forth in Article VIII, and the equal service that the Technical Secretariat shall render to each State Party in accordance with Article VIII.

4  Therefore, the political organs of the Organisation must take decisions on an equal footing, without a veto right accorded to privileged States (see the voting procedures under Article VIII, paras 16–18 and 29). The Technical Secretariat must act independently and in a balanced manner, and guarantee equal service for each State Party. The same applies to Article IX, which has a corrective function for the implementation mechanism of Article VIII in case of possible non-compliance. Any State Party can start procedures in order to solve doubts or concerns about possible non-compliance not resolved by the political organs. The same principle must also govern the implementation of Articles X, XI, and XII in order to guarantee equal security for all States Parties.

5  These are contained in UN Resolution 2625 (1970), which states: ‘[The] principle that States shall refrain in their international relations from the threat and the use of force … inconsistent with the purposes of the United Nations.’

6  See World Armaments and Disarmament, SIPRI Yearbook (London: Taylor & Francis, 1979), p. 529.

7  A/S-12/32 (1982), para. 59.

8  UN General Assembly, Report of the Open-ended Working Group (Open-ended Working Group to consider the objectives and agenda, including the possible establishment of the preparatory committee, for the Fourth Special Session of the General Assembly devoted to disarmament), A/AC/268/2007/2 (31 August 2007), Annex V: ‘Final reflections and suggestions from the Chair’, para. 7(c).

9  Official Records of the UN General Assembly, Twenty-First Session, supplement 1A/201/Add.1.

10  See the statutory provisions of Article VIII of the Convention on membership of the OPCW and decision-making, and their discussion in this commentary.

11  UN Publication, Sales No. E.69.1.24. This report was based, inter alia, on the Eighteen-Nation Disarmament Committee (ENDC) debates in 1968 and 1969. See SIPRI Yearbooks 1968/69, pp. 186–7 and 1969/70, pp. 185–206. Thereby, the possibility to ban chemical and biological weapons by two separate conventions was finally accepted and the discussion on a UK draft for a BW ban started.

12  WHO, ‘Health Aspects of Chemical and Biological Weapons’ (Geneva, 1970).

13  UN Treaty Collection No. 14860. This draft was welcomed by the UN as ‘the first measure of genuine disarmament’. See ‘United Nations and Disarmament’, 1971, p. 150.

14  BWC, Art. IX.

15  Angola, Egypt, the Democratic People’s Republic of Korea, and South Sudan are non-signatories, and Israel and Myanmar are Signatory States and have yet to ratify the treaty.

16  See Art. XXII.

17  See also A/S-15/3 (1988) for the agreed general principles of verification.

18  In the negotiations, originally called the Consultative Committee or the General Committee. See Report of the Ad Hoc Committee of 29 January 1988, CD/795 p. 21: ‘B [The Consultative Committee], [The General Committee]’.

19  Report of the Ad Hoc Committee of 29 January 1988, CD/795, paras 30 and 31.

20  Report of the Ad Hoc Committee of 29 January 1988, CD/795, paras 19 and 20.

21  See the commentary on Art. VIII, Section C, pp. 275–6.

22  F. Barnaby (ed.), A Handbook of Verification Procedures (London: Macmillan, 1990), pp. 2 and 3.

23  See the discussion of Art. VIII.

24  R. Trapp, ‘Worldwide Governmental Efforts to Locate and Destroy Chemical Weapons and Weapons Materials—Minimizing Risk in Transport and Destruction’ (2006) 1076 Ann. N Y Acad. Sci. 527–39.

25  See The CBW Conventions Bulletin, The Harvard Sussex Program on Chemical and Biological Weapons <http://www.sussex.ac.uk/Units/spru/hsp/Harvard-Sussex-Program-CBW-Conventions-Bulletin.htm>.

26  See R. Trapp, ‘Civil Society, Chemical Industry and the Chemical Weapons Convention’, CBW Magazine, July–December 2012, <http://www.idsa>.

27  Global Civil Society, ‘Shifting Powers in a Shifting World’, in H. Moksnes and M. Melin (eds), The Implications of the Growing Clout of Emerging Powers (Uppsala: Uppsala University Press, 2012), pp. 159–66. See also J. A. Scholte, ‘Civil Society and Democratically Accountable Global Governance’ (2004) 39(2) Government and Opposition 211–33.

28  RC-3/3*, para. 9.155(n).

29  See the Final Document of the Third Review Conference, RC-3/3*, para. 9.555(n).