Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction
Geneva, 3 September 1992
By Michael Bothe
Professor of Public Law, Goethe University Frankfurt
1. Chemical Weapons – their Characteristics and Properties
Chemical weapons are munitions and other devices which use the toxic effects of chemicals on living organisms to cause death or other harm. The definition of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (hereinafter referred to as “CWC”) only includes toxic effects on human beings and animals, not effects on plants (e.g., herbicides). In order to qualify as a chemical weapon, the toxic effect of the munitions must not necessarily be lethal. Other forms of harm (incapacitation) are sufficient even if they are only temporary. Whether chemicals which under normal conditions of use only cause short term irritation (e.g., tear gas) are also covered is controversial.
Toxic chemicals can spread over large areas and affect large numbers of people. Chemical weapons are therefore considered as “weapons of mass destruction”.
The use of chemical weapons during the First World War (in the beginning a surprise attack) generated a great shock in public opinion and soon triggered initiatives to ban these weapons, both their use and later their possession. These efforts started with the so-called 1919 Paris Peace Treaties which prohibited the possession of such weapons by the States which had lost the war. A prohibition of the use of these weapons, based on the language of the Paris Peace Treaties, was first stipulated in the Treaty for the limitation of Naval Armament adopted by the Conference on the Limitation of Armament held in Washington in 1922 and then in the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (hereinafter referred to as “the Geneva Protocol”). The Geneva Protocol constituted a major breakthrough as it was widely ratified, although it was slow in finally winning real universal participation. Chemical weapons were also an important part of the (eventually unsuccessful) arms control negotiations conducted under the aegis of the League of Nations.
After the Second World War, it was again the use of chemical weapons, namely, the use of tear gas and herbicides by the United States in the Vietnam War, which triggered new attempts to strengthen their ban. The United Nations General Assembly adopted resolutions to this effect declaring the content of the Geneva Protocol to be part of customary international law and at the same time inviting States to adhere to the Protocol (see in particular resolutions 2162 (XXI) B of 5 December 1966 and 2603 (XXIV) of 16 December 1969). A ban on possession of such weapons became part of the arms control negotiations conducted under the aegis of the United Nations (Conference of the Committee on Disarmament (CCD)). It was possible to separate the question of biological weapons, which became the object of a special treaty in 1972. Yet, the negotiations on chemical weapons lasted for more than 20 years, the major stumbling-block being a compliance system which had to be effective on the one hand, but not too intrusive on the other. The final success of these negotiations was the adoption of the CWC in 1992, which entered into force in 1997. As of July 2011, 188 States had become parties to it.
The prohibition of chemical weapons contained in the CWC has different aspects.
First, an arms control obligation: the prohibition to develop, produce, otherwise acquire, stockpile, retain or transfer chemical weapons.
Second, a disarmament obligation: the obligation to destroy or recommit to peaceful purposes chemical weapons in the possession of a State party, abandoned chemical weapons and chemical weapons production facilities.
Third, a prohibition belonging to the law of armed conflict: the prohibition to use chemical weapons, including a prohibition to use riot control agents as a method of warfare. As to the prohibition of herbicides, the CWC only refers in its preamble to other relevant rules of international law.
An elaborate mechanism to ensure compliance with the convention is the distinctive mark of the CWC. It is administered by a special international organisation, namely, the Organisation for the Prohibition of Chemical Weapons (OPCW). It consists of a number of different elements:
The different verification procedures are regulated in a highly detailed way in the Annex on Implementation and Verification to the CWC (hereinafter referred to as “Verification Annex”). The rationale of this sophisticated system is to strike a balance between the various interests at stake. On the one hand, there is the interest in the effectivity of controls which requires a certain intrusiveness, necessary to detect covert violations. On the other hand, there are legitimate interests (security, industrial secrets, safety of chemical production processes) which require restraint in controls.
The point of departure of the verification of destruction is the declarations made by a State party of existing stocks, sites of abandoned chemical weapons and production facilities. The sites and facilities are subject to regular inspections by the inspectors of the Technical Secretariat of OPCW.
Practically all chemicals which can be used to produce chemical weapons have beneficial civilian uses. Therefore, the diversion of chemicals from such civilian uses to military purposes is a major problem. The Verification Annex contains several lists of chemicals which have the potential of being diverted in this way and subjects chemicals contained in these lists to controls of different intensity, the control being most intensive for chemicals having the greatest potential of use for weapons purposes.
The verification system poses major challenges for national implementation. As the chemicals in question are, as a rule, in the hand of private industry, Governments must make sure that they have knowledge about all sites where the listed chemicals are handled to enable them to make the required declarations. The basis of the control is a balance sheet (input-output) of the substances in question. Correct records are therefore essential. The verification relates to the correctness of these records. When this verification takes place on site, it must be made sure that the industrial processes are not hampered and that no accidents occur. This is thus a very demanding system where it has been essential to engage industry in its design and implementation.
If a State party has doubts about compliance by any other State party, it may ask for a clarification. It may also request an on-site challenge inspection of the location where the doubtful activities allegedly take place. This is a necessary complement to the routine verification procedures which are all limited to “declared” facilities. Activities taking place outside these declared facilities are not covered by routine inspection. The challenge inspection is necessary to fill this possible gap in the monitoring system.
The procedural barriers to this request are low, but access by inspectors is strictly regulated.
The verification is performed by an international staff, members of the Technical Secretariat of OPCW. There are strict rules on confidentiality, including a specific dispute settlement procedure. This is an important safeguard for the protection of the interests of States which are subject to this procedure.
If inspections reveal non-compliance, the Secretariat brings the case before the OPCW Executive Council or even the Conference of States Parties. Among the measures which can be taken are such sanctions as the suspension of membership rights.
The Executive Council or the Conference may also bring the case before the United Nations. The Security Council may then decide to take enforcement action according to Chapter VII of the Charter of the United Nations.
In addition to this enforcement system, the CWC provides for a traditional inter-State dispute settlement procedure.
The functioning of the CWC depends to a large degree on national measures of implementation, two of them being of particular importance. First, there must be effective criminal sanctions against persons violating the prohibitions of the CWC. Second, as the verification procedures have to be implemented by and within industry, national legislation must ensure cooperation by the enterprises and other private actors concerned.
Complementing the arms control duties established by the CWC, there are duties on assistance and exchange of information concerning the protection against chemical weapons as well as on economic and technological development regarding chemical activities not prohibited by the Convention.
The functioning of the treaty system is administered by OPCW. In essence, it has the usual tripartite structure of international organizations: a plenary organ, the “Conference of States Parties”; a limited organ composed of 41 States elected by the Conference, the “Executive Council”; and a secretariat, the “Technical Secretariat”, headed by a Director-General. The major task of the Technical Secretariat is, as already mentioned, the administration of the verification system.
The seat of OPCW is The Hague, the Netherlands. The Organization and its personnel as well as the representatives of the member States enjoy the usual privileges and immunities accorded to intergovernmental organizations. The Organization possesses international legal personality. It is an autonomous treaty organization, not a specialized agency of the United Nations. Its relationship with the United Nations is governed by a special agreement concluded between the two Organizations.
In 1998, OPCW started its operation. The system of declarations works well. Destruction, being a difficult technical procedure, is in some cases behind schedule. There are assistance measures for countries having difficulties in complying with their destruction duties. The system of routine inspection of non-diversion works reasonably well. So far, no challenge inspection has been requested.
The negotiations which lead to the adoption of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction took place in the General Assembly or, at the Assembly’s request, within the Conference of the Eighteen-Nation Committee and its successors—the Conference of the Committee on Disarmament from 1969 to 1978, the Committee on Disarmament from 1979 to 1983, and the Conference on Disarmament from 1984 onwards.
In resolution 2162 B (XXI) of 5 December 1966, which called for the strict observance by all States of the principles and objectives of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed in Geneva on 17 June 1925 (the 1925 Geneva Protocol), the General Assembly noted that the Conference of the Eighteen-Nation Committee on Disarmament had the task of seeking an agreement on the cessation of the development and production of chemical and bacteriological weapons and on their elimination, as part of its consideration of the question of general and complete disarmament.
Following the discussion of the question of chemical and bacteriological weapons by the Eighteen-Nation Committee in 1968, the Conference of the Eighteen-Nation Committee recommended, in its report for 1968, that the Secretary-General should appoint a group of experts to study the effects of the possible use of such weapons (A/7189-DC/231), a recommendation the Secretary-General welcomed in the introduction to his annual report (A/7201). By resolution 2454 A (XXIII) of 20 December 1968, the General Assembly accordingly requested the Secretary-General to prepare a report on chemical and bacteriological (biological) weapons with the assistance of qualified consultant experts and called upon Governments, national and international scientific institutions and organizations to cooperate.
On 1 July 1969, pursuant to General Assembly resolution 2454 A (XXIII), the Secretary-General transmitted the report prepared by consultant experts on chemical and bacteriological (biological) weapons to the Conference of the Eighteen-Nation Committee, as well as to the General Assembly and the Security Council (A/7575/Rev.1 and Corr.1-S/9292/Rev.1 and Corr.1). The Conference of the Eighteen-Nation Committee (renamed “Conference of the Committee on Disarmament” (CCD) on 26 August 1969, following the enlargement of the Committee to 26 members) discussed the report at its 1969 session and welcomed it as a needed basis for further consideration of the question. Various proposals for possible action were placed before the Committee, including a draft convention for the prohibition of biological methods of warfare submitted by the United Kingdom (ENDC/255 and Rev.1 (A/7741, pp. 29-32)), suggesting that the issues of bacteriological (biological) weapons and chemical weapons should be dealt with in separate conventions. The Committee however decided to continue its work on both issues and reported to the General Assembly accordingly (A/7741 (DC/232)). At the twenty-fourth session of the General Assembly, in 1969, the First Committee held a separate discussion on the question of chemical and bacteriological (biological) weapons for the first time. It had before it the report of the CCD (which included the draft convention submitted by the United Kingdom), a draft convention on the prohibition of the development, production and stockpiling of both chemical and bacteriological (biological) weapons and on their destruction introduced by nine Member States and the report of the Secretary-General. On 16 December 1969, following the recommendation of the First Committee (A/7890), the General Assembly adopted resolution 2603 B (XXIV) by which it, inter alia, called anew for strict observance of the principles and objectives of the 1925 Geneva Protocol, took note of both draft conventions and requested the CCD to give urgent consideration to reaching agreement on the prohibitions and others measures referred to in the two draft conventions.
At the 1970 session of the CCD, discussions focused mainly on the two abovementioned draft conventions and on the question of whether both chemical and bacteriological (biological) weapons should be dealt with together or separately (A/8059 (DC/233)). At the twenty-fifth session of the General Assembly, the First Committee had before it a report of the CCD (A/8059 (DC/233)) and the two draft conventions. Upon recommendation of the First Committee (A/8179), the General Assembly adopted resolution 2662 (XXV) of 7 December 1970, by which it called again for the strict observance of the principles and objectives of the 1925 Geneva Protocol, took note of the various draft conventions and proposals and commended, among other things, that both chemical and bacteriological (biological) weapons should continue to be dealt with together, as suggested in a joint memorandum submitted to the CCD by 12 Member States (CCD/310 (A/8059, Annex C, section 39)). It further requested the CCD to continue its consideration of the question and to report to the Assembly in 1971.
In 1971, the members of the CCD reached a consensus on a draft convention on bacteriological (biological) and toxin weapons. The General Assembly commended the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (Convention on Bacteriological Weapons) by its resolution 2826 (XXVI) of 16 December 1971. The discussion on the prohibition of chemical weapons nevertheless continued in the CCD (A/8457 (DC/234)) and in the First Committee (A/8574). Upon recommendation of the First Committee, the General Assembly adopted resolution 2827 A (XXVI) on 16 December 1971, by which it requested the CCD to continue, as a matter of priority, its negotiations on the issue of chemical weapons and noted with satisfaction that the Convention on Bacteriological Weapons contained an undertaking to negotiate in good faith to reach an effective prohibition of chemical weapons. In its resolution 2827 B (XXVI) of the same day, the General Assembly urged all States to undertake, pending agreement on the complete prohibition of chemical weapons and their destruction, to refrain from any further development, production or stockpiling.
The discussions on the issue of chemical weapons continued at the CCD and in the General Assembly between 1972 and 1978, the General Assembly reiterating every year its request that the Conference continue the negotiations as a matter of high priority (see resolutions 2933 (XXVII) of 29 November 1972, 3077 (XXVIII) of 6 December 1973, 3256 (XXIX) of 9 December 1974, 3465 (XXX) of 11 December 1975, 31/65 of 10 December 1976 and 32/77 of 12 December 1977).
In 1978, at its tenth special session devoted to disarmament, the General Assembly established a Disarmament Commission, a deliberative body and subsidiary organ of the Assembly composed of all Member States and a successor of the Disarmament Commission originally established in 1952. It was decided that the Disarmament Commission should, inter alia, consider the elements of a comprehensive programme for disarmament, to be submitted to the Assembly and, through it, to a new Committee on Disarmament, succeeding to the Conference of the Committee on Disarmament as the negotiating body. It was further agreed that the Committee on Disarmament would be open to all nuclear-weapon States, and 32 to 35 other States and that membership would be reviewed at intervals. (See resolution S-10/2 of 30 June 1978).
The Committee on Disarmament devoted a major part of its deliberations in 1979 to the elaboration of an agreement on the prohibition of chemical weapons. While no agreement was reached, the United States and the Union of Soviet Socialist Republics (USSR) submitted a joint report on their bilateral negotiations on the issue, assuring that they would exert their best efforts to complete the negotiations and present a joint initiative as soon as possible (see A/34/27 and Corr.1). On 11 December 1979, following the discussion of the issue in the First Committee, the General Assembly adopted resolution 34/72, by which it expressed regret that no agreement had been elaborated and urged the Committee on Disarmament to undertake negotiations on such an agreement at the beginning of its next session as a matter of high priority.
A Review Conference of the Parties to the Convention on Bacteriological Weapons was held in March 1980. In the final declaration of the Conference, which was welcomed by the General Assembly (resolution 35/144 A of 12 December 1980), the parties reaffirmed their obligation to continue negotiations towards early agreement on complete, effective and adequately verifiable measures for banning and destroying chemical weapons.
On 17 March 1980, the Committee on Disarmament established an Ad Hoc Working Group for the duration of its 1980 session, to examine and define issues to be dealt with in the negotiations on a chemical weapons convention (see A/35/27). (The Working Group was re-established every year thereafter until the adoption of the Convention in 1992 and renamed “Ad Hoc Committee on Chemical Weapons” in 1984 when the Conference on Disarmament replaced the Committee on Disarmament.) The Committee also held discussions, both in plenary and informal meetings, on issues relating to the prohibition of chemical weapons. On 8 July 1980, the United States introduced, also on behalf of the USSR, a joint progress report on their bilateral negotiations on the issue. On 9 August 1980, the Committee adopted the working group’s report and included it in its report to the General Assembly (A/35/27). Following the discussion of the issue in the First Committee, and upon its recommendations, the General Assembly, again, urged the Committee on Disarmament to continue the negotiations as a matter of high priority (resolution 35/144 B).
The negotiations continued in the Committee on Disarmament during 1981, most of the work being conducted in the Ad Hoc Working Group on Chemical Weapons. In its report to the Committee, which was incorporated to the Committee’s report to the General Assembly (A/36/27), the Working Group recommended that it be re-established in 1982 with a revised mandate that would enable it to resolve differences. On 9 December 1981, the General Assembly adopted resolution 36/96 A requesting the Committee on Disarmament to do so and to continue the negotiations as a matter of high priority. By resolution 36/96 B, it further called on the United States and the USSR to resume their bilateral negotiations, which had been suspended in 1980, at the earliest possible date and called on all States to refrain from production and deployment of binary and other new types of chemical weapons.
The Committee on Disarmament (to be known as the “Conference on Disarmament” as of its 1984 annual session) continued to devote much of its time to the preparation of a draft convention to prohibit chemical weapons between 1982 and 1988, via its Ad Hoc Working Group on Chemical Weapons (Ad Hoc Committee on Chemical Weapons from 1984 onwards), which was mandated as of 1982 to elaborate a convention so as to enable the Committee to achieve agreement at the earliest date. In the same period, the General Assembly consistently expressed its regret and concern that a convention had not been finalized and urged the Conference on Disarmament to intensify its negotiations throughout this period (see resolutions 37/98 B of 13 December 1982, 38/187 B of 20 December 1983, 39/65 C of 12 December 1984, 40/92 B of 12 December 1985, 41/58 D of 3 December 1986, 42/37 A of 30 November 1987 and 43/74 C of 7 December 1988). Starting from 1984, several working groups were established by the Ad Hoc Committee every year to deal with specific aspects of the convention (A/39/27) and from 1985 onwards, consultations were also held during the intersessional periods (A/40/27).
The United States and the USSR resumed their bilateral negotiations in 1985. They agreed to accelerate efforts to conclude an effective and verifiable international convention on the general and complete prohibition of chemical weapons (A/40/1070), a commitment they reiterated in 1987 (A/43/58).
At the General Assembly’s forty-third session, in 1988, the United States proposed the convening of a conference to consider actions to uphold the authority and to “reverse the serious erosion” of the 1925 Geneva Protocol (A/43/PV.4). France offered to host the conference, which later took place in Paris from 7 to 11 January 1989. The General Assembly, by resolutions 43/74 A and C of 7 December 1988, welcomed this offer by France and, once again, urged the Conference to pursue its negotiations as a matter of continuing urgency.
The Final Declaration of the Conference of States Parties to the 1925 Geneva (the Paris Conference), which the General Assembly welcomed in resolutions 44/115 A and B of 15 December 1989, reaffirmed the authority of the 1925 Geneva Protocol and called on the Conference on Disarmament to redouble its efforts to conclude a convention prohibiting chemical weapons (A/44/88). The General Assembly further requested the Conference on Disarmament to use the political momentum generated by the Paris Conference and its recognition that the prohibition of chemical weapons is of universal concern and interest, to achieve the conclusion of such a convention at the earliest possible date.
At the initiative of the Government of Australia, a Government-Industry Conference against Chemical Weapons was convened from 18 to 22 September in Canberra (A/C.1/44/4), at which the Governments represented reaffirmed their commitment to conclude and implement a convention at the earliest date and the representatives of the chemical industry adopted a statement by which they declared their commitment to co-operate with Governments to that end. The General Assembly welcomed both outcomes in resolution 44/115 A of 15 December 1989.
On 23 September 1989, the United States and the USSR issued a joint statement on chemical weapons reaffirming again their commitment to pursue aggressively the prohibition of chemical weapons and the destruction of all stockpiles of such weapons (A/C.1/44/2); another joint statement indicating their determination to reach an agreement to this effect was issued on 10 February 1990 (CD/973 and 974). At a summit meeting in Washington on 1 June of the same year, the two States reaffirmed this commitment and signed an agreement whereby they committed themselves, inter alia, to cooperate regarding technologies for the safe and efficient destruction of chemical weapons, to abstain from producing such weapons and to reduce the stockpiles already existing (CD/1000 and 1001).
Re-established in 1990, the Ad Hoc Committee on Chemical Weapons was mandated “to continue the full and complete process of negotiations, developing and working out the convention […] with a view to giving the Conference a possibility to achieve an agreement as soon as possible” (A/45/27). As in previous years, the report of the Ad Hoc Committee was adopted by the Conference and incorporated in its own report to the General Assembly (A/45/27). By resolution 45/57 A of 4 December 1990, the General Assembly, while noting the progress made, expressed its regret and concern that a convention had not yet been concluded and strongly urged the Conference on Disarmament to intensify its efforts.
The Ad Hoc Committee on Chemical Weapons was re-established in 1991 with the same mandate as in 1991, but on 20 June 1991, the Conference on Disarmament decided to amend it to include the “use of chemical weapons” in the scope of the prohibition and make explicit its commitment to strive to achieve a final agreement on the convention by 1992 (A/46/27). By resolution 46/35 C of 6 December 1991, the General Assembly commended this decision of the Conference to “intensify further the negotiations on the complete and effective prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction with the view to striving to achieve a final agreement no a convention by 1992” and strongly urged the Conference, as a matter of the highest priority, to resolve outstanding issues in the forthcoming months, to enable a final agreement to be achieved during the Conference’s 1992 session.
The Ad Hoc Committee held 32 meetings between 24 January and 26 August 1992 under the abovementioned mandate. On 3 September 1992, the Conference on Disarmament adopted the report of the Committee, together with its appendix containing the text of the draft convention, as well as a text on the establishment of a preparatory commission for the Organisation for the Prohibition of Chemical Weapons and agreed by consensus to transmit the draft convention to the General Assembly (A/47/27). On the recommendation of the First Committee (A/47/690), the General Assembly commended the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, as contained in the report of the Conference, by resolution 47/39 of 30 November 1992. It further requested the Secretary General to open it for signature in Paris on 13 January 1993. The Convention entered into force on 29 April 1994.
Text of the Convention
Selected preparatory documents
Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 17 June 1925
The Convention entered into force on 29 April 1997. For the current participation status of the Convention, as well as information and relevant texts of related treaty actions, such as reservations, declarations, objections, denunciations and notifications, see: