Amy E. Smithson
Still Rudderless: The Chemical Weapons Convention at Two

• The United States Sets a Dreadful Example
• Concluding Observations

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Amy E. Smithson ^*
Still Rudderless: The Chemical Weapons Convention at Two

^*[ This essay was compiled from the author’s personal knowledge of pertinent developments, public sources, and interviews. The author has traveled to The Hague on several occasions to check on the progress of the treaty’s implementation, and she gratefully acknowledges the cooperation of the Technical Secretariat in the preparation of this report. Some of the CWC’s member governments may consider some of the details discussed in this report to be sensitive. The information in this report that is not documented to publicly available sources was confirmed through multiple interviews with individuals outside of the Technical Secretariat who have firsthand knowledge of the events in question. The author honors the request of these individuals to remain anonymous, but she thanks them for their candor and assistance with her research.]

On 29 April 1997, the majority of the world’s nations joined to activate an arms control and nonproliferation accord that will gradually compel the elimination of one of the most abhorred classes of weapons of all times. Previously, the international community had fallen short of the mark in efforts to try to abolish poison gas, despite the opprobrium following its widespread use in World War I. [ In April 1915, the German army initiated the age of modern chemical warfare when it released chlorine gas at Ypres along the Western front. In the early stages of World War I, poison gas was seen as an effective and versatile military asset that could break the stalemate of trench warfare. By the time the war concluded in 1918, some 113,000 tons of chemical weapons had been used on the battlefield by all the major players in the conflict. More than a million wartime casualties reportedly can be attributed to the use of chemical weapons. From a military standpoint, planners came to realize that chemical weapons would not play the decisive role in the outcome of the war. Rather, their long-term effects on troop morale and logistics proved more meaningful. Stockholm International Peace Research Institute, The Problem of Chemical and Biological Warfare: Volume I, The Rise of CB Weapons (Stockholm: Almqvist & Wiksell, 1971), pp. 26–58 and 125–40. See also Valerie Adams, Chemical Warfare, Chemical Disarmament (Bloomington, Indiana: Indiana University Press, 1990) and Victor Utgoff, The Challenge of Chemical Weapons: An American Perspective (New York: St. Martin’s Press, 1991). ] The new Chemical Weapons Convention (CWC) extends the no-use prohibitions of the 1925 Geneva Protocol [ The 1925 Geneva Protocol, which has 145 members, prohibits the use of chemical weapons. Arms Control and Disarmament Agreements: Texts and Histories of the Negotiations (Washington, D.C.: U.S. Arms Control and Disarmament Agency, 1996).] to outlaw the development, acquisition, production, transfer, and stockpiling of chemical weapons as well.

Already, the CWC’s activation has moved a number of countries to relinquish their chemical weapons programs, an indication that the sought-after behavioral norm against the possession of chemical weapons is beginning to take hold. When the CWC entered into force, more than 20 countries were thought to possess offensive chemical weapons capabilities. The countries designated as being of proliferation concern in the 1990s are: China, Egypt, India, Iran, Iraq, Israel, Libya, Myanmar, North Korea, Pakistan, Russia, South Korea, Syria, Taiwan, and Vietnam. [ U.S. Department of Defense, Proliferation: Threat and Response (Washington, D.C.: U.S. Government Printing Office, 1997); U.S. Arms Control and Disarmament Agency, Threat Control Through Arms Control, Report to Congress 1994 (Washington, D.C.: Arms Control and Disarmament Agency, 13 July 1995); U.S. House of Representatives, Committee on Armed Services, Countering the Chemical and Biological Threat in the Post - Soviet Era , 102d Congress, 2d session, House of Representatives. 102–15 (Washington, D.C.: U.S. Government Printing Office, 1993); Office of Technology Assessment, Proliferation of Weapons of Mass Destruction: Assessing the Risks, U.S. Congress OTA–IFC–559 (Washington, D.C.: U.S. Government Printing Office, 1993).] Several of these states have joined the CWC, namely China, India, Iran, Pakistan, Russia, and South Korea. Already, nine countries have mothballed or destroyed more than 60 poison gas factories, and four countries have laid plans or already begun destroying their chemical arsenals under the watchful eye of international inspectors. As of mid-June 1999, the Technical Secretariat had conducted more than 500 inspections in 29 CWC member states, including 120 inspections at commercial plants.

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The CWC requires nations to declare activities that were previously considered state secrets and private business information. The treaty authorizes routine and challenge inspections to monitor compliance with its prohibitions and deter potential violators. The CWC’s most severe verification tool, challenge inspections, was nothing short of revolutionary when the United States first proposed it in 1984. [ Then-Vice President George Bush personally traveled to Geneva to table a draft treaty text at the Conference on Disarmament. This U.S. draft proposed the incorporation of any time, any place, no-right-of-refusal challenge inspections as the centerpiece of the CWC’s verification regime. This proposal truly shocked the international community because monitoring of arms control accords at that point relied solely on national technical means (e.g., satellites, human intelligence). Even the less intrusive routine on-site inspection had yet to be conducted on a U.S.-Soviet basis, much less in a multilateral treaty. The 1987 Intermediate-Range Nuclear Forces Treaty became the first disarmament agreement to include routine inspections, with the initial volley of inspections being exchanged between the USSR and the United States in mid-1988. For a chronicle of these events, see Joseph P. Harahan, On-Site Inspections Under the INF Treaty, U.S. Department of Defense, On-Site Inspection Agency (Washington, D.C.: U.S. Government Printing Office, 1993). Bush’s challenge inspection proposal is in United Nations, Conference on Disarmament, „Draft Text of the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction", Document CD/500 (Geneva: 1984), pp. 7–8, 10–1.] This inspection tool remains untested today. Similarly, it remains to be seen whether the CWC can live up to its promise.

One hesitates to review any policy or program too soon after its inauguration because an accurate measure of performance and behavioral patterns can only be identified with the passage of time. Early on, it is difficult to distinguish inaugural, lack-of-experience problems from those attributable to ineffective administration, political and operational subversion of the effort, or genuine conceptual faults in the program or policy. At two years, however, one can begin to take measure, to identify problems and behavioral trends likely to spell success or failure.

Although 125 countries have joined the CWC and the chemical weapons threat has begun to shrink, not all the news is good. Damaging policies promoted by individual countries have been adopted by the CWC’s governing bodies, which in turn has fostered poor behavior on the part of some states. This circular pattern threatens to undermine the CWC’s landmark verification regime. The CWC appears to be a treaty under siege, surprisingly enough by some of the very nations that worked so diligently to negotiate it. The remainder of this essay dwells on the actions and lack thereof of the United States that arguably have serious negative implications for the near- and long-term integrity of the CWC.

The United States Sets a Dreadful Example

Washington frequently shows signs of an internal conflict with its role in global affairs, alternately seeking and shirking the mantle of leadership. Most U.S. policy makers and citizens believe that their country has by several measures - unparalleled military strength, the world’s largest economy, cultural and moral traditions - earned a singular place in the international community. Yet, some of those same individuals complain mightily when the responsibilities of this unique status loom large. In some instances, however, the United States must not hesitate to put its full weight consistently behind the thorough implementation of a sound international policy. Nowhere is that need more urgent than when it comes to policies to reduce the threat of weapons of mass destruction.

To say that the United States has set a poor example under the CWC would be a vast understatement. The portrait of U.S. CWC behavior begins with its standing as a violator of the treaty, and then moves on to a record of delinquency in the payment of bills, failure to

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deliver promised equipment to the CWC’s inspectorate, misguided conduct during inspections, and passage of implementing legislation spiked with treaty-weakening exemptions. For the past two years, the United States has been the malignancy in the midst of the CWC.

Incomplete Declarations

Although the United States has declared and opened to inspection its chemical weapons-related facilities (e.g., former production, storage, destruction, and defense sites), Washington has not declared the U.S. industry facilities that produce, consume, import, or export proliferation-risk chemicals above threshold quantities. These circumstances place the United States in so-called „technical" violation of the CWC. The phrase technical violation is a euphemism for breaking a legally binding treaty obligation.

The CWC’s implementing legislation, the victim of a year and a half-long cycle of neglect and political gamesmanship between the executive and legislative branches, was finally passed by Congress late in October 1998. [ The implementing legislation was folded into H.R. 4328, the fiscal year 1999 Omnibus Appropriations Bill, which the House of Representatives passed by a 333 to 95 vote on 20 October 1998. The Senate approved H.R. 4329 by a 65 to 29 margin the next day, and President Clinton immediately signed it into law. See Public Law 105-277.] Since then, various agencies of the U.S. government have squabbled over the pecking order of implementation responsibilities, resulting in further delay of the U.S. industry declaration. Late in June 1999, President Bill Clinton finally signed an executive order setting the jurisdictions among the various U.S. government agencies, [ Implementation of the Chemical Weapons Convention and the Chemical Weapons Convention Implementation Act, Executive Order of President Bill Clinton (Washington, D.C.: Office of the White House, Press Secretary, 25 June 1999).] and the draft regulations have been sent to the Office of Management and Budget for expedited review, the final step before their publication. Even if these regulations were published before July 1, it is unlikely that a U.S. industry declaration will reach the Technical Secretariat in the Hague before the turn of the century. [ The U.S. government will probably require at least six months’ lead-time to publish the regulations, gather data, and convert it into the proper form to submit to the Technical Secretariat.] Given the slowness with which bureaucracies process papers, a more reasonable expectation is that Washington will submit its industry declaration about when the CWC’s third anniversary occurs.

In the meantime, Washington is setting a very poor example for full treaty compliance by other countries, which can refer to the incompleteness of the U.S. declaration as a pretext for mis-declaring military-related facilities and under-declaring the number of industry facilities. While more than 90 members had submitted initial declarations as of March 1999, several countries have apparently not filed full or accurate declarations, or even any declarations at all. Two years into the CWC’s activation, states that have not filed declarations or have supplied incomplete or inaccurate declarations have yet to receive much criticism or any formal punishment. [ Within the Executive Council, some states (e.g., Italy, China, France, Germany) have threatened to stop inspections in their countries until the United States makes its industry declaration.] Until clear consequences are established for flouting the CWC’s declaration requirements, these negative behavioral trends will not correct themselves.

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Misguided Conduct during Inspections

When the Technical Secretariat’s inspectors made their initial forays into the field in June and July of 1997, they were well aware that the U.S. government had amassed significant experience in arms control monitoring, having participated in a variety of bilateral and multilateral inspection activities since the late 1980s. [ The United States began to accumulate on-site inspection experience as part of the Conference on Confidence- and Security-Building Measures and Disarmament in Europe (CDE) process that began in 1984. The CDE process worked to reduce tensions in Europe by instituting a series of data exchanges, declarations, notifications, and consultations. In September 1986, the CDE’s participating states agreed to provide each other with 42 days’ advance notice of large troop movements in Europe; to invite outside observers to witness the maneuvers; and to allow on-site inspections from both the air and ground. These early inspections were wrought with tension and were conducted in a very „by-the-book" fashion. See Don O. Stovall, "A Participant's View of On - Site Inspections", Parameters 19, no. 2 (June 1989), pp. 2–17. From that beginning, the United States has since joined several treaties with inspection obligations: the Intermediate-Range Nuclear Forces Treaty; Strategic Arms Reduction Treaty; Conventional Forces in Europe Treaty; Open Skies Treaty; and the Threshold Test Ban Treaty. In 1988, the On-Site Inspection Agency was established to conduct inspections abroad and escort inspectors coming to U.S. facilities under these treaties.] Given this experience, the Technical Secretariat’s personnel expected their U.S. counterparts to be tough and meticulous, but professional, in their observance of inspection procedures. For their part, U.S. officials assumed they would be able to teach the Technical Secretariat’s rookies a thing or two about the inspection business.

Just as in other countries, the inspectors and their hosts engaged in a certain amount of mutual testing. In the United States, however, the mood hovering over the inspections was apparently more intense than it was elsewhere. [ In a telltale sign of this mindset, some officials at the On-Site Inspection Agency apparently refer to their procedures for escorting the Technical Secretariat’s inspectors as „rules of engagement", a term of art normally used for encounters with the enemy on the battlefield.] For instance, during one early inspection, the inspectors found themselves unable to operate some electronic equipment because they brought the wrong adapter instead of the standard one for U.S. electric currents. So captious were the U.S. personnel that they refused to lend the inspectors an adapter or allow them to purchase one at a nearby store, stating that borrowed or newly purchased adapters was not equipment officially approved for CWC inspections. [ In another display of determination to adhere to the exact letter of the inspection procedures, U.S. officials turned back equipment at the outset of an inspection, the point of entry, because they had received advance notice of a name change for an item. The article in question was the tape used to seal the inspectors’ equipment to prevent unauthorized access to it. In the inspection mandate that U.S. officials were sent, the Technical Secretariat listed this item as frangible, fractural, adhesive seals, as it is described on the approved equipment list. On the inspection equipment sealed with this tape, however, the Technical Secretariat marked the seals simply as tamperproof. This technicality - the difference in names - became the U.S. justification for rejecting the equipment sealed with this tape. ] In hindsight, both the inspectors and U.S. host officials concede that they made some mistakes, and the United States has exhibited more cooperative behavior on some subsequent inspections, even lending the inspectors some equipment. [ The United States has lent inspection teams equipment that it had pledged to allow the Technical Secretariat to purchase, but now refuses to provide.]

Nonetheless, a few more significant and recurring disputes have overshadowed inspections in the United States. One disagreement involves the tagging of munitions. [ Tags are tamperproof markers that allow for the undisputed identification of items of military equipment controlled by an arms control treaty. For more information, see Steve Fetter and Thomas Garwin, "Tags", in Verification of Conventional Arms Control in Europe: Technological Constraints and Opportunities , eds. Richard Kokoski and Sergey Koulik (Boulder, Colorado: Westview Press, 1990), pp. 139–54.] From a verification perspective, the CWC recognizes multiple purposes for tagging. First, the Technical

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Secretariat has the right to tag munitions to denote ones that are to be sampled to confirm their contents - whether a bomb is filled with mustard or sarin. Samples of actual munition contents need to be taken randomly because the outside markings on a munition, while a reasonably reliable indicator of munition fill, could be easily altered should a country attempt to cheat by substituting munitions with identical markings and a benign fill and hiding some of its real weapons. [ Chemical Weapons Convention, Verification Annex, Part IV (A), paragraphs 49 and 67. The United States has requested that the inspectors take samples just prior to the destruction of weapons, not in the storage bunker or magazine.] Second, the Technical Secretariat has the right to tag items for other important verification purposes, namely to assist the inspectors with the monitoring of weapons inventories over time and through the endpoint of destruction. [ The inspectors „shall employ, as appropriate, agreed seals, markers, or other inventory control procedures to facilitate an accurate inventory of chemical weapons prior to destruction." Convention Weapons Convention, Verification Annex, Part IV (A), paragraph 62. See also, paragraphs 66–7 of Part IV (A).] Hence, the inspectors have sought to tag a sufficient number of items to confirm reliably the U.S. stockpile declaration and the subsequent destruction process, some of which they may opt to sample. From the U.S. perspective, the number of munitions tagged has important cost implications. Sampling and analysis make up an expensive and time-consuming process that requires safety precautions and could delay destruction schedules. Therefore, the United States argued that a minimum number of rounds be tagged.

Evidently disregarding the inventory control function of tags and assuming that every munition tagged will be sampled, U.S. officials suggested that the inspectors tag only two munitions per storage magazine. The Technical Secretariat and U.S. officials subsequently reached a gentleman’s compromise, agreeing that three munitions per magazine would be tagged if U.S. officials claim that the magazine holds munitions filled with only one chemical agent. However, in storage magazines that contain rounds with two different agent fills, U.S. officials have insisted that only three munitions be tagged, although the circumstances instead merit tagging of at least six. In short, the United States has taken a position of „trust Uncle Sam, the green-stripped ones are tabun." Ironically, U.S. officials are asking the Technical Secretariat to abandon the philosophy that has guided U.S. inspection activities since the 1980s, former President Ronald Reagan’s dictum of „trust, but verify". [ At the signing of the Intermediate-Range Nuclear Forces Treaty on 8 December 1987, President Reagan made the following statement: „But the importance of [the INF Treaty] transcends numbers. We have listened to the wisdom in an old Russian maxim. And I’m sure you’re familiar with it, Mr. General Secretary, though my pronunciation may give you difficulty. The maxim is: Dovorey no provorey – trust, but verify." From „Remarks on Signing the Treaty Eliminating Intermediate-Range and Short-Range Nuclear Missiles", Weekly Compilations of Presidential Documents vol. 23 (8 December 1987), p. 1458. Interestingly enough, „trust, but verify" was the On-Site Inspection Agency’s motto until 1993, when it was changed to „trust and verify".] According to this verification philosophy, U.S. officials adamantly declined to accept a color stripe or other exterior markings on the outside of a munition as proof of identification during the inspections under the Intermediate-Range Nuclear Force Treaty. Instead, U.S. officials insisted on the use of specialized measurement equipment to certify the exact dimensions of missile stages as the standard of verification. [ At the Votkinsk missile production facility, the United States installed a large machine to x-ray two tiny perimeter slices of exiting railcar canisters to ascertain that they did not contain an SS-20 missile first stage either directly or within the shell of an SS-25 missile stage. George L. Rueckert, Global Double Zero: The INF Treaty from Its Origins to Implementation (Westport, Connecticut: Greenwood Press, 1993), p. 157. See also „Votkinsk Portal Monitoring System: System Description" (Albuquerque, New Mexico: Sandia National Laboratories, 16 June 1989); Harahan, On-Site Inspections Under the INF Treaty, pp. 74–78, pp. 83–87; „Bechtel's Cargoscan to Support INF Verification", Defense News 4, no. 16 (17 April 1989)p. 35. In addition, the United States had the right under to treaty to request periodically that missile canisters be opened, whereupon a piece of equipment called the stage measuring device was maneuvered into the canister to measure the circumference of the missile stage. The United States insisted that this device have measurement capabilities because exterior markings were not reliable identifiers of an SS-20 missile stage. While visiting Sandia National Laboratories in 1988, the author personally handled this unwieldy piece of equipment, which Sandia personnel were evaluating.]

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In addition, U.S. officials have cited health and safety concerns when refusing to allow the inspectors to weigh ton containers filled with chemical agent. Although U.S. officials claim to be wary of an accident during the weighing process, the Army has stored its bulk agent in modified commercial ton containers, which are frequently weighed when used for industrial purposes. [ According to an Army spokesperson, the ton containers employed at U.S. chemical weapons storage facilities are the same as those used to transport and store a variety of commercially available chemicals (e.g., chlorine). Although this official stated that the Army does not weigh its ton containers as part of its routine maintenance procedures, U.S. storage facilities do maintain specialized equipment on-site, such as cranes and scales, to accommodate requests for weight measurements, should such a need arise. Information provided on 1 September 1998 by Cathy DeWeese, U.S. Army, Edgewood Chemical Activity. Other former U.S. officials familiar with the Chemical Corps’ handling of ton containers have been present when these containers were weighed during the 1990s. Interviews with the author, 13 August 1998, 31 August 1998, 1 September 1998.] Privately, U.S. officials concede that the real problem is that not all of these containers have been filled to the same level, and some evaporation has occurred over time as a result of routine maintenance activities. Weighing the ton containers would therefore reveal inaccuracies in the U.S. declaration, which is based upon the nominal, not the actual fill of these ton containers. By arguing that the actual weight should not be a key point of verification, U.S. officials again deserted their trust-but-verify philosophy and left the Technical Secretariat to try to verify the amount of agent in the ton containers via ultrasonic measurement and calculation. For verification purposes, this approach is insufficient. [ The ultrasonic sensor may give incorrect readings if the agent inside the container has thickened or crystallized or has air pockets. A nation attempting to cheat on the CWC could spoof such indirect monitoring methods by removing some of the agent inside bulk containers and diluting the remaining agent with water. In this scenario, a photon-induced neutron spectrometer would still detect the presence of agent inside the container but will be unable to discern whether the agent is concentrated or diluted. Ideally, the Technical Secretariat can employ several monitoring tools in conjunction with each other to safeguard against diversion of agent from bulk containers. Therefore, it is important that the inspectors be able to weigh ton containers at a storage facility at least randomly, if not comprehensively.] Given the hard line that the United States has taken when assessing other countries’ arms control compliance, [ A prime example where U.S. allegations of noncompliance were adamant was the 1979 outbreak of anthrax in the Soviet city of Sverdlovsk. The U.S. government asserted that the epidemic was caused by a leak from a covert biological weapons production facility, but the Soviets attributed the 64 deaths to contaminated meat. Few other nations took issue with the Soviet cover story, which was proved false in 1992 when Russian President Boris Yeltsin conceded that the USSR and Russia had maintained an active biological weapons program in violation of the Biological and Toxin Weapons Convention. Yeltsin’s admission was originally given to the Russian newspaper Komsomolskaya Pravda and subsequently reported by R. Jeffrey Smith, „Yeltsin Blames ’79 Anthrax on Germ Warfare Efforts", Washington Post , 16 June 1992, p. A1. The U.S. charges of noncompliance can be found in the annual arms control compliance reports, which the government began to send to Congress in 1984. For an epidemiological study that concurs with the U.S. government’s conclusions about the military origins of this disease outbreak, see Matthew Meselson et al., „The Sverdlovsk Anthrax Outbreak of 1979", Science 266, no. 5188 (18 November 1994), pp. 1202–1208. ] one would be hard pressed to believe that U.S. policy makers would find it acceptable if other nations maintained that the inspectors retire after obtaining only a rough estimate of the amount of chemical agent in their bulk containers. Alternate means exist to calculate more precisely the level of agent in ton containers, but as will be discussed below, the Technical Secretariat has run into problems obtaining such equipment.

Although the frequency and intensity of disagreements between the inspectors and their U.S. escorts have declined, the atmosphere surrounding the inspections in the United States remains tense in comparison to what is transpiring in other countries. One individual extremely familiar with the situation observed that, „Every single request that the inspectors make is questioned, disputed. It is as though [U.S. officials] are treating every inspection like

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it was a challenge inspection." [. Interview with author, 12 August 1998.] A diplomat described U.S. officials as having „mind sets that are clouded with a confrontational approach, perhaps a legacy of the early bilateral inspections with the USSR, wherein every inspection is treated as a zero-sum game." [ Author’s interview with a foreign diplomat, 27 August 1998. Another individual summarized the circumstances with a bit of humor: „The U.S. escorts are so inflexible that they have to call Washington to get permission to put a different topping on the pizza." Interview with the author, 14 August 1998.]

At the time that the CWC entered into force, the United States had the only operational destruction program and the largest number of military facilities to be inspected, so other nations had an opportunity to observe the way that the U.S. government treated the inspectors before inspection teams arrived on their territory. Some of the more unfortunate examples that the United States set did not go unnoticed. Two other chemical weapons possessors, Russia and South Korea, have recited virtually word for word the U.S. reasons for curtailing tagging, sampling, and analysis of their munitions. Similarly, India has balked at the use of weighing equipment. [ Although one cannot rule out the possibility that India learned of the U.S. behavior by some other means, India was on the Executive Council and Indian officials therefore saw the U.S. facility agreement, which states that only boxes of munitions (not ton containers) can be weighed.] Unwittingly, the United States may have initiated the beginning of a domino effect of uncooperative behavior. If this trend is not reversed, it will degrade verification effectiveness over the long term.

In some regards, the U.S. behavior is baffling. U.S. military and civilian leaders have forsworn future use of chemical weapons, including for retaliatory purposes. [ In the aftermath of the Gulf War, President George Bush revised U.S. policy in May 1991 to state that the United States would „formally [forswear] the use of chemical weapons for any reason, including retaliation against any state, effective when the [Chemical Weapons] Convention enters into force." Gen. John Shalikashvili, then chairman of the Joint Chiefs of Staff, testified that the U.S. military’s ability to deter chemical attacks on U.S. troops would be rooted not in a chemical retaliatory capability, but in „robust chemical weapons defense and the ability to rapidly bring to bear superior and overwhelming military force." U.S. Senate Committee on Armed Services, Military Implications of the Chemical Weapons Convention, 103d Congress, 2d session, S.Hrg. 103–835, (Washington, D.C.: U.S. Government Printing Office, 1984); U.S. Senate Committee on Foreign Relations, Chemical Weapons Convention Hearings , 103d Congress, 2d session., S.Hrg. 103–869 (Washington, D.C.: U.S. Government Printing Office, 1984).] Whether or not the United States participates in the CWC, the Army is required by law to destroy the U.S. chemical arsenal. The United States, it seems, has nothing to hide. Although the level of cooperation a state offers cannot be the sole gauge for judging compliance with the CWC, the behavior that U.S. authorities have displayed during some inspections may lead other countries to question U.S. intentions. Members of the CWC, it should be recalled, are required to cooperate with the inspection process, and the inspectors are to note in their reports the level of cooperation received. [On the requirement of states to cooperate with inspections, see Chemical Weapons Convention, Article IV, paragraph 5; Article V, paragraph 6; Article VI, paragraphs 3, 4, 5, and 6 Article VII, paragraph 7, Article XI, subparagraphs 11 (a) and (b); Verification Annex, Part II, paragraphs 51 and 59; Part XI, paragraph 16. For the inspectors’ responsibilities to record their observations on cooperation, see Chemical Weapons Convention, Verification Annex, Part II, paragraphs 46, 51, and 62.] The United States has consistently received the lowest of the three grades for cooperation - excellent, very good, and good. [ Interviews with author, 11 and 28 August 1998.] Fortunately, most countries, while somewhat ill at ease with the inspections, have nonetheless received them with a cooperative frame of mind. [ Several governments, for example the United Kingdom, Australia, and Canada, have approached the inspections as an opportunity to demonstrate compliance and enhance international security over the long term. Some countries, for instance Germany and Japan, have exhibited more cooperation on some occasions than on others. Russia has also received special mention for the generally positive reception it has afforded the inspectors. Not only have Russian officials gone out of their way to help the inspectors fix equipment problems, they have volunteered a great deal of secondary supporting documentation to help the inspectors confirm the accuracy of their declarations.]

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National Legislation containing Exemptions

As if these circumstances were not enough to harm the CWC, the U.S. implementing legislation contains three exemptions that would undercut the CWC’s verification regime. First, the U.S. law would allow the president to refuse a challenge inspection on the grounds that it „may pose a threat" to U.S. security interests. Second, this legislation specifies that no samples collected during an inspection can leave U.S. territory for analysis. A third measure in the U.S. law would narrow the number of industry facilities that declare activities involving mixtures or solutions that contain proliferation-risk chemicals. [ In the Senate’s bill, S.610, these exemptions are contained in sections 307, 304(f)(1), and 402(a)(2). Almost identical language is the bill drafted by the House of Representatives, H.R. 2709. The pertinent sections are 237, 234(f), and 252(a)(2). These exemptions transferred into H.R. 4328. See note 6. Note that the origins of the exemption prohibiting the sample analysis outside of U.S. territory are in condition number 18 of the Senate’s Resolution of Ratification, S.Exec.Res. 75, which the Senate passed on 24 April 1997.] Should other nations emulate these examples, they would block challenge inspections, deny inspectors permission to send chemical samples abroad for detailed analysis at independent laboratories, and decrease considerably the number of industry facilities worldwide that are declared and subsequently opened to routine inspection.

At first glance, decision makers at home and abroad may be inclined to see these exemptions as the handiwork of the U.S. chemical industry. Jumping to such a conclusion, however, would be a mistake because the U.S. chemical industry has a history of strong, consistent support for the thorough and equitable implementation of the CWC. Led by the Chemical Manufacturers Association, the U.S. chemical industry has played a laudable, constructive role in helping to design the CWC’s verification regime. The U.S. industry was a stalwart supporter of the CWC’s ratification, repeatedly describing the treaty’s reporting and inspection burdens as „reasonable and acceptable". The U.S. chemical industry worked closely with Congress and the Clinton administration to ensure the reasonable interpretation of the treaty in the United States. Nevertheless, the chemical industry did not ask Congress or the Clinton administration to slip measures into the implementing legislation to reduce the monitoring of U.S. industry facilities.

The Clinton administration has downplayed the possible negative consequences of enacting the above-listed measures. Some in the executive branch contend that the national security exemption is simply boilerplate language that will protect U.S. interests in the event that frivolous challenges are requested. Or they have argued that this exemption is harmless because it will never be activated. Both of these contentions are false.

The national security exemption negates the treaty obligation to accept a challenge inspection at any U.S. location. The CWC already contains provisions to deter and punish abuse of the right to request challenge inspections. Furthermore, as Senator Pete Domenici (R–New Mexico) observes:„If there is no intention to use it, then including this provision merely opens the door for other nations to follow our lead and diminishes our capacity to catch cheaters." [ Remarks of Senator Pete Domenici, Congressional Record (22 May 1998), p. S5389.] In short, the U.S. precedent, whether dormant or not, invites replication. In that event, the CWC’s inspectors will be severely handicapped in their ability to catch cheaters. The CWC’s chief inspector, Ambassador Jose Bustani, told the New York Times that restrictions on inspections would „seriously undermine the implementation of this [C]onvention". [ Steven Lee Myers, „Senate Backs Bill Limiting Chemical Arms Ban", New York Times , 23 May 1998, p. A3.]

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U.S. officials have also suggested that the United States can thwart or diminish a negative international reaction to the sampling analysis exemption by purchasing one or more mobile laboratories and donating them to the inspectorate. According to this view, a mobile lab developed by the Department of Defense would be used for analysis of samples in the United States as well as in countries of proliferation concern. This approach is unlikely to work.

A mobile laboratory is not currently on the approved list of equipment, nor is such a laboratory likely to be approved for use in the near - or long-term future - even if one were donated. A major addition to the approved equipment list such as a mobile laboratory would require the consent of the Executive Council and the Conference of States Parties. Numerous countries have already backed modifications that „dumbed down" the inspectors’ field analytical equipment, so they are likely to object strenuously to a proposal that the Technical Secretariat field a sophisticated, U.S.-equipped mobile laboratory.

Furthermore, the analysis of U.S. samples from such a laboratory will not be recognized internationally because the Defense Department’s mobile laboratory does not have accreditation from the Technical Secretariat. Other governments are likely to question the impartiality of U.S. analysis of a U.S. sample. U.S. authorities would surely question test results in the event that a suspected cheater conducted sample analysis in its own laboratories. Conversely, if the Technical Secretariat were to ship the mobile laboratory to another CWC member state during an inspection, that country would have the right to refuse use of the laboratory because it is not approved equipment. Thus, a mobile laboratory is a false solution for canceling the negative consequences of the sample analysis exemption.

Senator Joseph Biden, Jr. (D - Delaware), has characterized the sampling exemption as one that „opens a huge loophole for countries that may violate this [C]onvention... I dread the stain upon our collective conscience if a future violator of this treaty should ever make use of the exemption we are carving out, and then use those illegal chemical weapons against U.S. forces or innocent civilians." [ Remarks of Senator Joseph Biden, Jr., Congressional Record (22 May 1998), p. S5378.] Samples can provide the strongest evidence of an illicit chemical weapons program, and this exemption could prevent inspectors from determining what is truly going on in countries of proliferation concern. Off-site analysis could be particularly crucial to identifying the contents of an inspection sample, given the incompleteness of the Technical Secretariat’s analytical database and the way that the inspectors’ analytical equipment has been handicapped. [ The Technical Secretariat’s designated laboratories will be able to perform a thorough structural analysis to identify the chemical(s) in the sample. Further analysis will clarify whether a sample that the GC/MS identified as a „yes" chemical contains a precursor on Schedules 2 or 3 or an actual chemical agent. Laboratory analysis will also reveal whether a „no" sample contains a scheduled chemical that was not yet in the Technical Secretariat’s analytical database.]

Finally, the U.S. implementing legislation redefines a term in such a way that fewer U.S. Schedule 3 commercial facilities would have to declare their activities and therefore be subject to inspection. The term in question is the low concentration of a chemical mixture or solution. Representatives of the U.S. chemical industry and U.S. government officials informally agreed with other governments and the Technical Secretariat that 30 percent was a suitable ratio, but the implementing legislation elevates the low concentration threshold to 80 percent. By any reasonable assessment, 80 percent is a high concentration in a chemical mix. Should this figure become the standard in the United States, other nations, already indignant over the delay in inspection of U.S. commercial facilities, will contemplate replicating this 80

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percent figure and making fewer of their commercial facilities liable to routine inspection.

Experience in Iraq and the former Soviet Union has shown a pattern wherein the commercial industry is used as a facade for the proliferation of weapons of mass destruction. [ Salmon Pak, Al Manal, and Al Hakam were three of the purportedly commercial facilities at the center of Iraq’s biological weapons program. In the 1970s, the USSR created an extensive civilian research organization, known as Biopreparat, to mask its biological weapons programs. On Iraq’s biological weapons program, see Raymond A. Zilinskas, „Iraq’s Biological Weapons; The Past as Future?" Journal of the American Medical Association 278, no. 5 (6 August 1997), pp. 418–24. For the latest assertions about the extent of Russia’s biological weapons program, which has yet to be opened to outside inspection, see Tim Weiner, „Defector Claims Soviets Had Chemical Warfare Plan", New York Times , 25 February 1998, p. A1 and Richard Preston, „Annals of Warfare: The Bioweaponeers", New Yorker (9 March 1998), pp. 52–65.] The routine presence of inspectors at a broad range of commercial facilities will give the CWC’s members a clearer picture of the chemical activities taking place around the globe, particularly in countries of proliferation concern.

Therefore, narrowing the scope of routine inspections serves neither U.S. security interests nor the security interests of other CWC members. When fewer industrial facilities working with low concentrations of proliferation-risk chemicals are declared, the CWC’s inspectors will not gain routine access to as many commercial facilities overseas. The bottom line, according to Senator Domenici, is that „We thereby increase the likelihood that proliferators will use industrial facilities to mask chemical weapons activities, averting detection."

Concluding Observations

Presumably, scores of nations, including the United States, did not spend more than two decades at the negotiating table and thereafter join the CWC only to disable the treaty once in force. The investment in the CWC’s creation aside, each CWC member has something very tangible to gain - enhanced national security and international peace - should this disarmament and nonproliferation mechanism prevail. This essay concludes, however, that the United States is first and foremost among the CWC’s members that are not being careful custodians of the accord.

In the end, Washington has taken a very cavalier approach to the implementation of the CWC. Throughout the treaty’s negotiation, the United States was one of the strongest champions of a chemical weapons ban, persuading and cajoling other countries to conclude an agreement. Washington extolled the CWC as the centerpiece of international efforts to reduce the chemical weapons threat, [ The CWC is one of several mechanisms needed to address the chemical weapons threat, the others being robust chemical and conventional defenses, strong intelligence capabilities, and sound export control policies. ] but since signing the treaty in 1993 has left the CWC virtually untended. The United States dallied for more than four years with the CWC’s ratification, managing to join just five days before it was activated. Throughout this ratification ordeal, some of Washington’s policy makers appeared to handle the CWC less as a serious matter of security and state than as an issue of politics. [ During the 1996 campaign season, a vote on the CWC’s ratification was aborted when the two candidates running for the presidency played politics with the treaty. On 11 September, Republican presidential candidate Robert Dole sent senators a letter advising them to beware of „illusory" arms deals. With the president’s polling numbers high and foreign policy issues of little import to the outcome of the election, the Clinton White House opted not to return fire and make the Senate’s vote on the CWC an election issue. The White House withdrew the CWC from consideration. Later, former Senator Dole would come to the CWC’s rescue on the eve of the Senate’s 24 April vote, appearing at a White House press conference to urge his former colleagues to give their advice and consent to the CWC. See Bob Dole, Letter to Trent Lott, 11 September 1996; Thomas W. Lippman, „Senate Foes Force Delay on Poison Gas Treaty", Washington Post , 13 September 1996, p. A1; Francis X. Clines, "Dole No Senator, but Might as Well Be", New York Times , 24 April 1997, p. A6. For a detailed account of the entire U.S. ratification saga, see Amy E. Smithson, „Bungling a No-Brainer: How Washington Barely Ratified the Chemical Weapons Convention", in The Battle to Obtain U.S. Ratification of the Chemical Weapons Convention , Occasional Paper 35 (Washington, D.C.: The Henry L. Stimson Center, July 1997), pp. 7–34.] Now, the United States

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again appears to be showing indifference toward this treaty.

In the words of Senator Domenici, „the U.S. cannot hold other countries to standards that we ourselves are not willing to meet." [ Remarks of Senator Pete Domenici, Congressional Record (22 May 1998), p. S5389.] Therefore, Washington should move swiftly to preserve the CWC’s integrity. The Clinton administration first needs to bring Washington into compliance by submitting the long-delayed industry declaration. Next, the United States needs to cease its efforts to pick and choose which treaty provisions it will adhere to, lest Washington remain exactly where it is today - in a very poor position to demand strict compliance by other states. Consequently, Washington must also delete the damaging provisions in the U.S. implementing legislation, stop hindering the use of approved inspection equipment, and assume a more cooperative approach toward CWC inspections.

Other nations have closely observed Washington’s treatment of the CWC. With the world’s second largest chemical weapons stockpile and the largest commercial chemical industry, the international community perceives the United States to have special stewardship responsibilities regarding to the CWC’s implementation. Friends of the CWC hope that the United States will regain its form as a steadfast advocate of the treaty in both word and deed; foes of the CWC stand ready to contribute to the treaty’s downfall, should Washington not redeem itself.

Undoubtedly, all governments are predisposed to embrace measures that would enable them to avoid the CWC’s stringent challenge and sampling provisions and lessen the declaration and inspection burdens on their chemical industries. Two other countries, for example, have already told Bustani, the head of the CWC’s inspectorate, that they will duplicate the exemption prohibiting sample analysis abroad. [ Myers, „Senate Backs Bill Limiting Chemical Arms Ban", p. A3.] Some nations will copy the U.S. exemptions because they will not tolerate the creation of a different and less intrusive standard of verification for the United States while their countries are held to the more rigorous standards established in the treaty. Other states will skillfully use the U.S. exemptions to camouflage banned chemical weapons activities. The U.S. government, having established these precedents, will have little recourse if other countries cite national security concerns to deflect a challenge inspection or block inspectors from sending a sample abroad for further analysis.

No matter what the circumstances, two wrongs, as the saying goes, do not make a right. If the United States does not amend its poor CWC record, that should be no excuse for other CWC members to implement their treaty obligations in a lackluster fashion or to undermine the CWC’s verification regime further. Unfortunately, evidence exists that other countries have already begun to chip away at the CWC’s verification protocol and the rights of the treaty’s inspectors. For example, Germany, France, and Japan pushed very hard for the Preparatory Commission, Conference of States Parties, and Executive Council to stipulate an operational policy requiring inspectors to turn over their notebooks at the conclusion of an inspection so that host governments could photocopy the contents. [ For the Conference of States Parties’ decision, see „Decision: Measures in Relation to Approved Equipment Following Completion of Inspection Activities", Document C–I/DEC.51 (The Hague: Organization for the Prohibition of Chemical Weapons, 16 May 1997): subparagraph 3.2.1.] This approach exploits to the advantage of individual countries what appears to be a discrepancy between two parts of the CWC, one that states that the inspectors’ notebooks are inviolable under the Vienna

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Convention and another that requires the inspection team to provide its preliminary findings to the host government. [ Chemical Weapons Convention, Verification Annex, Part II, paragraph 60. For the duration of the inspection, from entry to departure, the inspectors’ privileges and immunities cover their „papers and correspondence, including records, and samples and approved equipment." Chemical Weapons Convention, Verification Annex, Part II, paragraphs 11–2. See also C-I/DEC.51, subparagraph 3.2.1.] According to a legal brief prepared by the Technical Secretariat, no discrepancy exists. Neither the CWC nor the Vienna Convention „acknowledges or permits any exception to the. . . inviolability [of all inspectors’ papers and correspondence]. Any such exception would . . . compromise and vitiate the unbiased and independent nature of inspection records." [ „Note by the Legal Adviser: Legal Opinion on the Inviolability of Papers and Correspondence, Including Records, Samples and Approved Equipment of the Inspection Team Under the Convention", Document C–II/TS.3 (The Hague: Organization for the Prohibition of Chemical Weapons, 4 December 1997), p. 2.] During its January 1998 meeting, the Executive Council ignored this legal advice and the warnings that having to forfeit their notebooks would intimidate the inspectors and indirectly effect their fieldwork. [ See paragraph 9.3 of „Report of the Eighth Session of the Executive Council", Document EC–VIII/2 (The Hague: Organization for the Prohibition of Chemical Weapons, 30 January 1998). Also see „Eighth Regular Session of the Executive Council Concludes in The Hague", Secretariat Brief no. 003 (The Hague: Organization for the Prohibition of Chemical Weapons, 2 February 1998): 3.]

Having little choice, the Technical Secretariat instituted a revised standard operating procedure whereby its inspectors are to photocopy their notebooks upon request. Almost all countries are now asking for copies of the notebooks. The negative implications of this policy are not difficult to forecast. Knowing that host officials can copy their notes, the inspectors are unlikely to feel free to record their personal reflections concerning the effectiveness of inspection activities, questions about compliance, and the level of cooperation they have received. A blatant violation of the treaty may be judged an international crime, so without the protection inviolability affords, an inspector would have to be heroic to record his or her observations of a gross violation of the CWC.

In the back of their minds, the inspectors also cannot help but worry that their recorded views may later be used against them. An inspector will think twice about writing remarks that a host government might not like, knowing that at any time each government can withdraw without explanation permission for staff members to conduct inspections on its territory. [ The inspected state may describe its objections to an inspector, but is not required to do so. Chemical Weapons Convention, Verification Annex, Part II, paragraph 4.] An inspector blacklisted by several countries would essentially be confined to headquarters. Finally, should the inspectors choose to rely on their memories instead of their written observations, the inspectors become vulnerable to accusations of incompleteness, inaccuracy, or unprofessionalism if they forget any details. Thus, common sense indicates that the decision on inspectors’ notebooks will ultimately weaken the inspectorate.

Another related and discouraging development is that Germany and France have taken the position during policy discussions that the inspectors should be allowed to review records while at a facility, but barred from copying and transporting any documents off the premises. According to the treaty, the inspectors and an inspected country can agree to leave sensitive documents on site in a locked, sealed box as a point of reference for future inspection teams. [ Chemical Weapons Convention, Verification Annex, Part III, paragraph 9.] However, the CWC’s inspectors must be allowed to take off site any records that could indicate inconsistencies with a country’s declaration, ambiguities, or noncompliance. [ Documents, it should be recalled, have played a central role in the ability of UNSCOM inspectors to unveil the extent of Iraq’s nuclear, chemical, and biological weapons programs. UNSCOM inspectors had a series of clashes with the Iraqi government as they tracked the trail of papers detailing Iraq’s nuclear program. In September 1991, UNSCOM inspectors were forced to sleep in a parking lot upon discovery of key documents and videotape supporting allegations of a surprisingly advanced Iraqi nuclear program. John M. Goshko and Ann Devroy, „Iraq Holds UN Inspectors for 13 Hours, Seizes Data", Washington Post , 24 September 1991, p. A1; R. Jeffrey Smith, „Inspectors Got Details On Iraqi Nuclear Effort", Washington Post , 25 September 1991, p. A21; and Michael Z. Wise, „UN Team Finds New Evidence of Iraqi Coverup", Washington Post , 1 October 1991, p. A14. Additionally, the „chicken farm documents" - so named for the spot in which they were discovered in August 1995 following the defection of Saddam Hussein’s son-in-law Hussein Kamal - have proven instrumental in corroborating suspicions about Iraq’s biological weapons program. Approximately 500,000 pages found in boxes and steel trunks on Kamal’s farm gave detailed information on Iraq’s pursuit of biological weapons. William J. Broad and Judith Miller, „How Iraq’s Biological Weapons Program Came to Light", New York Times , 26 February 1998, p. A1; Khidhir Hamza, „Inside Saddam’s Secret Nuclear Program", Bulletin of the Atomic Scientists 54, no. 5 (September/October 1998), pp. 26–33. For an overview of Iraq’s efforts to foil UNSCOM, see David A. Kay, „Denial and Deception Practices of WMD Proliferators: Iraq and Beyond", Washington Quarterly (Winter 1995), pp. 85–105.] Should

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inspectors be precluded from removing documentation and other important evidence from a facility, nations would have to base their compliance assessments on the word of inspectors versus the host government’s account. Such untenable circumstances would again shift the CWC’s original balance between the rights of inspectors and the inspected, making it more difficult to resolve compliance concerns.

The CWC’s member states cannot remain idle when a country denies inspectors the right to retain key documents or gain access to relevant areas of a facility. Furthermore, the CWC’s members need to reverse the policy requiring photocopying of inspectors’ notebooks. While this misguided policy has given countries the illusion of being able to ensure that the inspection process does not compromise sensitive or proprietary data, [ A key data point does not have to be written down to be remembered. No rule, no matter how restrictive, can control what the inspectors retain in their minds.] it is likely to inflict genuine damage to the ability of the inspector corps to monitor the treaty effectively. In the interim until the CWC’s members muster the political will to reverse this decision, the Technical Secretariat should move to reestablish the treaty-mandated inviolability of the inspectors’ notebooks. [ The Technical Secretariat can do so by creating a new operational procedure that guides the inspectors to differentiate between two categories of information while they are in the field. The inspectors would record the first category of information - the typical data gathered about a facility - on standardized worksheets. The inspectors would reserve their notebooks for a second category of data, namely their personal reflections on the inspection experience (e.g., observations about ambiguities, questions concerning noncompliance and the level of cooperation received). These private notebooks would remain inviolable, as the CWC directs, but the inspectors would be able to give the standardized work sheets to host officials to copy.]

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Even in the turbulent beginning phase of its implementation, the CWC has demonstrated its ability to roll back the chemical weapons threat. This success, however, has been in spite of, not because of, the U.S. example. Washington can perpetuate the negative CWC trends taking shape or it can play a critical role in helping to reverse them by gripping the rudder and steering the CWC toward its full potential as a disarmament, nonproliferation, and cooperative security mechanism. U.S. policy makers owe it to present and future generations to choose the latter course. Chemical weapons proliferation is too grave a problem for Washington to continue to be derelict in what is needed to implement the CWC fully and effectively.