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Alexander Kelle
Preventing Chemical Weapons Proliferation: Implementing the Chemical Weapons Convention
A German Perspective
Seen from a historical perspective, the roots of Germany's approach to weapons of mass destruction (WMD) in general and chemical weapons in particular can be traced to the early post-World War II years. The disastrous defeat in World War II led to the development of a new political culture in West Germany, including a new foreign policy culture, which represented a radical departure from prewar patterns. [ See Thomas Berger, „Norms, Identity, and National Security in Germany and Japan", in Peter J. Katzenstein, ed., The Culture of National Security. Norms and Identity in World Politics (New York: Columbia University Press 1996), pp. 329-345.] Before World War II German society was highly militaristic. After the war, both occupation authorities and the new political elites worked together in demilitarizing society and in institutionalizing antimilitarist sentiments, which also covered the rejection of WMD.
This new attitude found its first expression in the 1954 renunciation of all categories of WMD. The first legally binding renunciation of chemical weapons (CW) was issued in exchange for resumption of-then West-German sovereignty and the country's accession to the North Atlantic Treaty Organization (NATO). It took place in the context of the signature of the Paris treaty on the creation of the West European Union. Yet, the 1954 renunciation-which expanded the prohibition of use, stemming from the 1925 Geneva Protocol-merely covered the production of CW on German territory. [ See Thilo Marauhn, Der deutsche Chemiewaffenverzicht: Rechtsentwicklung seit 1945 (Berlin: Springer-Verlag 1994).]
When Germany signed the Biological and Toxin Weapons Convention (BTWC) in 1972, the Federal Government declared that not only had Germany renounced the production of chemical weapons, it also would not develop, acquire, or retain under its control such weapons. This, the statement went on, was the already established policy of the Federal Republic. [ See Presse- und Informationsamt der Bundesregierung, Bulletin Nr. 51, 11 April 1972, p. 728.] Yet, it is interesting to note that at the time there was no international legal norm or international commitment with respect to CW from which this position could be derived, nor was there national legislation that would translate these prohibitions into the domestic realm. According to both Article 26, paragraph 2 of the German Basic Law and the War Weapons Control Act of 1961, all acts of German citizens related to CW-except their production on German territory and their use-were subject to licensing, not to a prohibition. This was only changed in 1990 with the reform of German export control laws, following the export scandals in the second half of the 1980s. [ See Harald Müller, Matthias Dembinski, Alexander Kelle, Annette Schaper, From Black Sheep to White Angel? The New German Export Control Policy, PRIF Reports No. 32, Frankfurt/M. (PRIF) January 1994.]
Besides the changed antimilitarist-foreign policy culture, a distinct policy style developed in German foreign and security policy making. German security policy since World War II has been constantly embedded in multilateral institutions. There was hardly a German security policy worth mentioning during the immediate post-World War II years under the occupation regime. Once the occupation regime was lifted in 1955, West Germany was granted its place in the community of sovereign states on the condition that German sovereignty was embedded in multilateral Western security institutions, such as NATO and the Western
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European Union (WEU). Thus, Germany had to pursue its security policy through international organizations. This „education in multilateralism" became a crucial factor determining German security policy-making, including the approach taken toward arms control and disarmament measures.
In the Chemical Weapons Convention (CWC) context, this different socialization had an effect during the negotiating phase of the convention, when the United States was generally pursuing bilateral arms control diplomacy with the then Soviet Union while Germany was relying much more on the multilateral structures available. A case in point is the active role of Ambassador Von Wagner, head of the German delegation to the Conference on Disarmament in Geneva, during the CWC negotiation endgame. [ For an analysis of the negotiations and German policy see Joachim Badelt, Chemische Kriegführung - Chemische Abrüstung. Die Bundesrepublik Deutschland und das Pariser Chemiewaffen Übereinkommen (Berlin: Berlin-Verlag 1994).] Of course, while German implementation of the CWC is first and foremost based on a multilateral approach, the pursuit of national interests is still present in this multilateral endeavor.
German Ratification of the Chemical Weapons Convention
Germany ratified the CWC on 12 August 1994 as one of the first states with a big chemical industry. Originally, the Federal Government intended to submit the instrument of ratification within the 180-day period specified in Article XXI of the convention so as to contribute to the earliest possible entry into force of the convention two years after its opening for signature. This attempt failed because of the approach taken by the Government, which foresaw the parallel submission of legislation for both ratification and implementation. [ See Entwurf eines Ausführungsgesetzes... Deutscher Bundestag, 12. Wahlperiode, Drucksache 12/7207, 11 April 1994 for the draft implementation legislation; the draft ratification law was published as Drucksache 12/7206, 11 April 1994.] While the ratification legislation did not encounter any difficulties during its passage through the parliamentary process, the implementing legislation got stuck in the Bundesrat, the upper house of German parliament in which the 16 Federal German States are represented. The states on the territory of the former German Democratic Republic particularly objected to the legislation because of uncertainties relating to the cost of implementation. They demanded an unequivocal statement from the Federal Government that it would cover the cost if CW of former occupation forces or old CW were found on their territory. After Under Secretary of State Dieter Kastrup made a declaration to this effect during a meeting of the Joint Consultative Commission (of Bundestag and Bundesrat) in June 1994, the way for the legislation's passage was paved.
As already mentioned the 1990 reform of the War Weapons Control Act prohibited a number of actions related to CW, which were previously only subject to licensing (at least theoretically). According to Section 18 of the revised War Weapons Control Act
(1) It is prohibited to
1. develop, produce or trade in biological or chemical weapons, to acquire them from or transfer them to another person, to import or export them, to transport them through or otherwise bring them into or out of federal territory, or otherwise to exercise actual control over them,
1a. induce another person to commit an act specified in item 1 above, or
2. encourage an act specified in item 1 above.
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The changes also raised the penalties for a violation of Section 18 considerably. Also covered by the revised law were supporting and instigation of such criminal acts, as well as criminal acts of negligence and carelessness. Furthermore, all these violations became punishable when committed abroad.
Despite the improvements in domestic legislation, the War Weapons Control Act continued to contain in its appendix a list in which all groups of chemicals or individual chemicals that qualify as CW agents were enumerated. Because the Act does not contain a general-purpose criterion and because this list of chemical agents is only roughly equivalent to Schedule 1 of the CWC, this represents the biggest gap that the implementing legislation for the CWC had to close. This was successfully done with Section 17 of the implementing legislation, as enacted in August 1994. [ See Christoph Bundscherer, Deutschland und das Chemiewaffen Übereinkommen. Wirtschaftsver-waltungsrecht als Instrument der Rüstungskontrolle (Frankfurt/M. et al.: Peter Lang Verlag 1997), pp. 86-115.]
Implementing the Chemical Weapons Convention: German Views
Authority for domestic implementation of the CWC's provisions is distributed mainly among three government agencies. Following Article VII (4) of the CWC the Foreign Ministry serves as the national authority and is the focal point for contacts with the Organization for the Prohibition of Chemical Weapons (OPCW) and other states parties. While the Federal Export Control Office (BAFA) implements all industry-related CWC provisions, the Verification Center of the Federal Armed Forces is in charge of data collection and verification measures in the military realm.
On a more general level, Germany attaches great importance to the achievement of universality in OPCW membership. The aim of being among the first states parties to deposit the instruments of ratification was motivated by the desire to set an example and thus be in a better position to lobby other states to follow suit.
Another major goal in German efforts to enhance the implementation of the convention, and at the same time to ensure that German interests, mostly economic ones, are not being put at a disadvantage, is the equal application of the CWC's provisions among states parties. Two issues may serve to illustrate this point.
The first is related to trade in listed chemicals between CWC members and nonmembers. This trade is allowed with respect for Schedule 2 chemicals for a period of three years after entry into force of the convention and for a period of five years with respect to Schedule 3 chemicals. Paragraph 32(c) of Part VII and paragraph 26(c) of Part VIII of the Verification Annex to the convention contain rules according to which such exports to nonmembers require end-use certificates from the recipient state stating that the transferred chemicals will only be used for purposes not prohibited by the Convention. As it turned out, some states parties trading in these listed chemicals accepted an end-use statement from the customer itself and not from a government authority. Germany, on the other hand, demanded that end-use certificates be issued by government authorities in the recipient state. When the German chemical industry voiced complaints about considerable loss of business because of this practice, the issue was brought before the Executive Council. The Council then asked the Secretariat for a legal opinion, which it received during its seventh session. [ See Document EC-VII/TS.1, dated 14 November 1997.] The Council took up the issue again during its eighth session in January 1998 and decided that the wording in the Verification Annex should be understood to mean „end-user certificates issued by the
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competent government authority of states not party to this Convention." This decision was confirmed by the third Session of the Conference of States Parties. [ See Documents EC-VIII/DEC.3, dated 30 January 1998 and C-II/DEC.7, dated 17 November 1998.]
The second issue concerns the frequency of industry inspections, especially the reinspection of Schedule 2 facilities in some countries - among them Germany - before comparable facilities in other states parties - first and foremost the United States - had received their initial inspection. Here, the German delegation was joined by some other Western delegations, which insisted on including a footnote in the budget that would allow only a fixed portion of all Schedule 2 inspections in the year 1999 to be conducted at sites that had already received their initial inspection. [ See Footnote 4 on page 74 in the Draft OPCW program and Budget 1999, dated 9 November 1998.] The biggest portion of this type of inspection, according to this small group of „like-minded" states, should be assigned to initial inspections in „latecomer" states with a sizeable chemical industry, most prominently the United States, to avoid an ever-increasing imbalance in the burden put upon chemical industries of states parties. In case the U.S. declaration of its chemical industry might be further delayed, inspections assigned to the „latecomers" in terms of industry declarations must not be interchangeable with those to be conducted in other states parties. The draft program and budget foresaw a maximum number of 38 Schedule 2 inspections in states parties that have already declared their Schedule 2 plant sites and 50 inspections for states parties that had not done so before 20 November 1998. This formula was eventually agreed upon by the Conference of States Parties.
Another major concern of German diplomacy in CWC implementation is the treatment of old chemical weapons (OCW) and the cost of related verification measures. Although Article IV, paragraph 16 stipulates that „each State party shall meet the costs of destruction of chemical weapons it is obliged to destroy", it is clear from paragraph 1 of the same Article that its scope does not cover „old chemical weapons and abandoned chemical weapons to which Part IV (B) of the Verification Annex applies." Since Part IV (B) of the Verification Annex does not contain any provision relating to the costs of their verification, it is the German position that these costs have to be covered by the regular OPCW budget, not by the states parties on whose territory the OCW are located. Indeed, Article VIII, paragraph 7 of the convention can be quoted as supporting the German position. It states that the cost of verification activities are to be borne by the organization itself, unless an exception to this basic rule is clearly spelled out in the Convention - like the verification of storage and destruction of chemical weapons. However, no such exception exists for old CW.
Related to this issue is the question of the usability of old CW. According to paragraph 5 of Part IV (B) of the Verification Annex, the conference shall consider and approve „guidelines to determine the usability of chemical weapons produced between 1925 and 1946." These guidelines should have been prepared by the Preparatory Commission and decided upon by the first session of the Conference of States Parties; nothing like this has happened so far. The basic dispute revolves around the question of how to determine „usability" of old CW. Is an old CW with only one functioning component still usable, or is an old CW already unusable when only one part of it does not work as originally intended? These are the two poles in a seemingly endless and circular debate, in which the German position clearly is very close to the latter position. Unusable old CW produced before 1925 can be treated as toxic waste and will be disposed of in accordance with domestic legislation and regulation. Following Part IV (B), paragraph 7 of the Verification Annex unusable OCW that were produced between 1925 and 1946 have to be destroyed „in accordance with Article IV and Part IV (A) of this Annex." From the German point of view it is no accident that only „destruction", not „verification" of
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old CW is mentioned in the paragraph. The notion that unusable old CW (1925-1946) could be regarded as „de facto" CW in disguise is strongly rejected by German officials. Consequently, proposals to establish usability guidelines that would support the „broad interpretation" of the term are seen as an attempt on the part of some CWC states parties to enlarge the group of CW possessors through the back door.
Conclusion
German policy to implement the CWC has followed the traditional approach of pursuing disarmament and nonproliferation policy in a multilateral framework to the greatest extent possible. Where this is not possible or deemed to be an insufficient approach, the alternative - following the anti-militaristic foreign policy culture - is not defense, deterrence, or preemptive military measures. Rather, the forum for pursuing the disarmament or nonproliferation policy is changed, either by favoring a bilateral approach, as in the case of disarmament aid to Russia, or by harmonizing export controls with a group of like-minded states in the Australia Group.
The fear of discrimination is a familiar theme that was very prominent in German nuclear non-proliferation policy in the 1960s and early 1970s. As the issues of end-use certificates for trade with states not party to the convention and the reinspection of Schedule 2 facilities showed, German diplomacy in the CW field is very attentive when it comes to the equal implementation of industry-related CWC provisions across states parties.
German diplomacy - like that of other states parties - is equally attentive when it comes to the question of how the OPCW budget is being spent. This in principle is not surprising, given the fact that the German contribution is the third largest one. Yet, the involvement of the Executive Council in the day-to-day operations of the organization has led to allegations that some states tried to „micro-manage" the OPCW´s Technical Secretariat. Even if this were the case, it should be seen as a manifestation of the fact that the organs of the organization have not yet found their precise and durable roles relative to one another. It should certainly not be misconstrued as a sign of diminished importance attributed to the verification of CW destruction and to the provision of a favorable environment for implementing the nonacquisition norm in a multilateral framework.
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© Friedrich Ebert Stiftung | technical support | net edition fes-library | Februar 2000
