1.  This Memorandum addresses the third item of the terms of reference for the Committee's inquiry into Weapons of Mass Destruction: the progress and effectiveness of the 1993 Chemical Weapons Convention (CWC) and the 1972 Biological and Toxin Weapons Convention (BWC). It is written from the standpoint of an academic trained in chemistry and law and concerned about militarisation of the life sciences, who since the 1960s has been conducting research into public-policy aspects of chemical/biological-warfare (CBW) armament and arms limitation.

  2.  Progress in relation to what, and effectiveness on what yardstick? It was never the intention that these two treaties should be stand-alone safeguards against CBW. Rather, their function was to serve as consolidating influences within an array of other anti-CBW measures. For the United Kingdom, once the Macmillan government's secret decision to pursue chemical rearmament had effectively been abandoned,[70] the main element in this array has remained an alert and technologically advanced protective posture against CBW weapons on the part of the armed forces, with a watching brief for corresponding civil defence. All such protection is expressly permitted by both treaties. National intelligence machinery having at least some capacity for monitoring foreign CBW capability is another element, as is the national penal legislation that has conferred powers against terrorists seeking access to CBW weapons. Special national export controls have been added to the array as an anti-proliferation measure, and in Brussels the United Kingdom took a leading role in the formation of what in 1985 became the Australia Group, which is an informal means for harmonising such controls among the main exporting countries. Within all this, the primordial function of the Conventions has been threefold: to assert a norm of abstention from CBW armament; to reaffirm, as did the 1925 Geneva Protocol, the ancient cross-cultural taboo against the use of poison and disease as weapons; and to provide nuclei around which international action against transgressors can crystallise. That threefold consolidating influence in general, and the nucleating function in particular, seem the proper yardsticks for the Committee's assessment of effectiveness.

  3.  The Conventions' provisions for compliance-vertification and for what CWC Article XII calls "measures to redress a situation and ensure compliance, including sanctions" are the principal nuclei for promoting action by the international community against transgressors of the norms against CBW armament and its use for hostile purposes. In the application of these provisions, the story thus far is not one of unmitigated success, as the following episodes indicate:

(a)  In 1981 the United States charged the Soviet Union, Viet Nam and others with using toxin weapons ("yellow rain") in Afghanistan and southeast Asia. In so doing it disregarded the Article V consultation procedure of the BWC and the Article VI complaints procedure, preferring instead the route of "public diplomacy". The charges have not formally been withdrawn, even though they have long since been discredited;[71]

(b)  When, in October 1989, defector testimony finally confirmed the existence and revealed the organisation and scale of a clandestine bioweapons programme in the Soviet Union, remedies were sought, not through the BWC itself, but within the framework established by an ad hoc agreement among the three co-depositaries of the treaty (the UK, the USA and the USSR);[72]

(c)  Iraq was forced in 1991 to ratify its May 1972 signature of the BWC as a condition of the Gulf-War ceasefire, but when it became evident that its stocks of bioweapons had not been destroyed within the subsequent nine months required by Article II of the Convention, the matter was pursued within UNSCOM, not BWC, machinery;

(d)  Employment of chemical weapons by at least four states parties has been alleged since the CWC entered into force for them: India,[73] Russia,[74] Sudan[75] and Turkey.[76] Yet the allegations remain unresolved in the public record, notwithstanding the verification capacity maintained by the treaty's international oversight authority, the Organisation for the Prohibition of Chemical Weapons (OPCW) headquartered in The Hague.

  Nor, it should be said, is the story one of unmitigated failure. The OPCW is having remarkable success in building confidence that chemical-weapons disarmament really is beginning, both among the main possessor states, and among those others (for example, India) that have, in accordance with the CWC, unexpectedly declared themselves to be possessors. A further notable success came in 1997 with Cuba's invocation of BWC Article V for consultations among BWC states parties on its allegation that thrips infestations of certain of its crop cultivations had been caused by a US act of biological warfare: formal cosultations were duly convened, chaired by the UK, and, although they concluded that "it has not proved possible to reach a definitive conclusion", Cuba nevertheless expressed itself satisfied. Even so, the four illustrations at (a)-(d) above suggest that improvements are needed in the compliance-verification and associated arrangements of both treaties if they are to fulfil their response-nucleating and therefore deterrent role.

  4.  As is well known, views on how much verification is enough change in response to changes in the wider political and security environment. Back in the early 1970s, there was no consensus that the incorporation of an international verification system into the BWC would provide cost-effective augmentation of the overall array of countermeasures against bioweapons. So the verification arrangements of the BWC were limited to the consultation and complaints procedures of Articles V and VI. But in the mid-1980s, when persuasive evidence of Soviet noncompliance was beginning to accumulate, abrogation of the treaty came to seem an increasingly attractive option for some, including officials of President Reagan's administration in the United States. This development, and the subsequent revelations about the Iraqi bioweapons programme, evidently stimulated the BWC's friends into remedial action: into determining whether new technology and new forms of relationship between government and biology-based industry could yield compliance-verification machinery suited to the new context. Here, the lead internationally was taken by the UK government, which had at its disposal exceptionally competent and dedicated personnel resources in the FCO Arms Control and Disarmament Research Unit and the MoD Chemical and Biological Defence Establishment. Meeting in special conference in September 1994, BWC states parties decided to open negotiations to "strengthen the Convention" including "possible verification measures". For the past five years they have been working intermittently on a draft BWC protocol, which, however, is still some good way short of completion.

  5.  The CWC had been concluded in the meanwhile, and had entered into force in 1997 with an elaborate verification system. This system is characterised by a division of labour between the OPCW on the one hand and, on the other hand, the National Authorities set up by states parties as required by CWC Article VII.4 in order to fulfil their obligations under the treaty.[77] The system is not yet fully operational in all of its aspects. That, perhaps is why states parties have not yet put it fully to the test. So stringent, however, is the confidentiality regime within which the OPCW is obliged to operate that it is impossible for the outside world to observe and assess the actual performance of the CWC verification system. The outside world, including this Committee, must rely solely on assurances given by OPCW Director-General José Bustani. It is no aspersion at all upon him or his staff to describe this situation as unsatisfactory.

  6.  With the BWC Protocol still unfinished, and with the CWC verification system not yet fully operational, an experience-based assessment of the role and effectiveness of BWC/CWC compliance-verification within the overall array of anti-CBW countermeasures is not yet possible. Only a negative conclusion can be offered here; the episodes noted in paragraph 3 above point to a BWC/CWC treaty regime not as capable as it could be of nucleating international action against transgressors. This has a disturbing ramification. So deficient a regime could, on past experience, suffer a sudden flight of international confidence if it were to be confronted by allegations of grave noncompliance—irrespective of whether the allegations were true or, as many in the past have proved to be, false. The danger might then be that the treaties would become a liability, not an asset, in the overall array, [78] in which eventually the norms themselves may erode.

  7.  This prospect has two implications for policy. First, the BWC Protocol must be concluded as a matter of high urgency, and it must be an instrument with real teeth, not just another declaration. Second, the transparency of the CWC regime must be increased: the OPCW must not be discovered, should the crunch ever come, to be a sort of pre-UNSCOM IAEA—its challenge-inspection procedures unimplementable, perhaps, or its inspectorate blind to chemicals not expressly on its control lists.

  8.  In both these respects what the United States does is crucial. The main reason why the CWC verification system is not yet fully operational is the great length of time that country has been taking to open its civil chemical industry to the forms of international inspection which the CWC requires and to which most of the rest of the world's industry has now been subject for two years. By mid-2000, however, this US lag phase seems likely to have ended, in which case the way may then be set for US industry to discover, as UK industry has apparently already discovered, that erstwhile concerns about the impositions of the control regime, and its possible threats to investment, are mostly unfounded. US engagement with the BWC Protocol negotiation could then become altogether more concerted and constructive than has thus far been the case. Provided the currently awkward positions of countries such as China and India can be accommodated, completion of a satisfactory Protocol might be achieved not too far into the post-Clinton era.

  9.  The UK, which occupies a key Friend-of-the-Chair position in the BWC Protocol negotiation, has become obliged to mediate between opposing blocs of allies within the Western Group. In this and other tasks, the UK delegation needs all the support it can get, not least protection against imposition of counterproductive deadlines.

  10.  With regard to the needs of the CWC, the UK is again in a position to contribute much. It is a member of the OPCW Executive Council. It has a track-record of constructive and expert participation in the affairs of the OPCW, including resolution of both outstanding and pending issues. But because the CWC has moved from negotiation into implementation, the UK lead has passed from the FCO to the Department of Trade and Industry (DTI), which is the designated National Authority for the CWC. The UK National Authority (UKNA) has thus far submitted three annual reports to Parliament, as required by statute,[79] and is currently finalising its report on activities during calendar year 1999. These reports have been drafted with close attention to detail and, as Parliament recommended when making them statutory, are now seen in draft by an advisory committee.[80] How much Parliamentary attention they have then received is not obvious from the public record.

  11.  The UKNA annual reports describe how the UK is actually implementing the CWC, including those compliance-assuring tasks which, through the division of labour noted in paragraph 5 above, fall to the National Authorities rather than the OPCW Technical Secretariat. Such tasks extend to the UK obligation, under CWC Article VI.2, "to adopt the necessary measures to ensure that toxic chemicals and their precursors are only developed, produced, otherwise acquired, retained, transferred, or used within its territory or in any other place under its jurisdiction or control for purposes not prohibited under this Convention". Among the myriad toxic chemicals and their precursors that are known to exist or that may yet be discovered, the OPCW Technical Secretariat is sighted only towards those 29 chemicals and 14 families of chemicals that are listed in the CWC Annex on Chemicals and on which state parties are therefore obliged to declare industrial data to the OPCW and accept routine inspections to validate their declarations. It is the National Authorities, therefore, not the OPCW Technical Secretariat, that are primarily responsible for implementing a provision of the CWC—the general purpose criterion—which for the reasons set out below in paragraph 12 is absolutely vital to the future of the treaty. UKNA, it goes without saying, is fully aware of this. But the provision is not at all easy or costless to implement, and it is important that this be properly appreciated. UKNA's efforts to cope are worthy of wider recognition and support, not least because, regrettably, they are unmatched elsewhere. The UK has once again assumed a standard-bearing role in the international BWC/CWC enterprise.

  12.  As in Article VI.2 just quoted, the general purpose criterion is used in the CWC to define the scope of the treaty.[81] Through it, the CWC is not in fact a prohibition of chemical weapons at all, but of particular purposes to which chemicals may be put. The negotiators had two main reasons for adopting this approach. First, many chemicals are "dual purpose" in the sense that they can as well be used for chemical warfare as for beneficent peaceful purposes; so the chemicals themselves could not be banned, only certain applications of them. Second, if the treaty had simply listed the substances whose purposes were to be controlled, it could be overtaken by advances in science applicable in hitherto unknown forms of CBW armament. The device of the general purpose criterion in the CWC is copied from the BWC. To have focused the treaties on weapons, not purposes, could have harmed activities on which the well-being of society depended and locked the control regime into the technology of its birth-time, technology which, sooner or later, would become obsolete. The responsibility falling upon the National Authorities in this regard is therefore great. The danger against which it is directed, however, does not appear to be an immediate one, so it may perhaps be taken more lightly than is prudent. It is striking that the UKNA annual report for 1998—the first in the series to receive glossy-brochure treatment—makes no express mention of it.

  13.  Indeed, if one is to be critical of UKNA's performance thus far, one may deplore its propensity, evident in the annual reports, for hiding its light under a bushel: for seeming to conceal rather than candidly to describe what it has been doing. True, the annual report is, strictly speaking, only about the operation of the Chemical Weapons Act 1996; but the purpose of that Act is to create powers enabling effective implementation of the CWC in this country. Besides the general purpose criterion, there is a second area in which a more informative annual report could be particularly beneficial. CWC Article VII.4 requires each National Authority "to serve as the national focal point for effective liaison with the [OPCW] and other States Parties". This aspect of UKNA's work has not been reflected in the annual reports except as regards OPCW activities on UK soil. Liaison is not a one-way process, yet the annual reports present none of the information that must have been gleaned through it on what other states parties are doing or on other aspects of the OPCW's work. A unique opportunity is therefore being lost for keeping Parliament informed about the progress and effectiveness of the CWC regime. While it is true that the confidentiality provisions of the CWC would limit the detail of such reporting by UKNA, they do not require total silence. The OPCW's own annual report, whose quality might benefit from such competition (see paragraph 5 above), indicates this.

  14.  There is at the present juncture a particular need for more informative reporting by UKNA. If, as seems inevitable, the impending US presidential election imposes a hiatus upon the BWC Protocol negotiation, there will be opportunity for considering possible reorientations of the enterprise. For example, much of industry concern about the inspection provisions being proposed for the BWC Protocol has to do with biotechnological processes whose products are chemical rather than microbiological. In the particular form of "toxins" and of anything else describable as toxic, such products fall within the scope of the CWC's general purpose criterion. One option might therefore be to negotiate an expansion of the OPCW verification system into biology-based industry and so reduce the burden being placed on the projected BWC Protocol. The Protocol's compliance-verification system as applied to manufacturing industry might then even be limited to sectors of the industry where the product is a listed biological organism. But evaluating such options needs rather detailed information about how the OPCW verification system in fact operates, on both sides of its national/international division of labour.

  15.  In conclusion, one further recommendation for action is offered for consideration. The BWC/CWC regime rests on the 1925 Geneva Protocol, which outlaws use in war of CBW weapons and whose 75th anniversary falls on 17 June 2000. The FCO has actively been promoting the universality of both the BWC and the CWC. Should not this anniversary year be occasion for a renewed effort to ensure that all states that have bound themselves to the Geneva Protocol also bind themselves to its implicit CBW disarmament obligation, by joining both the BWC and the CWC? In this most ambivalent of categories—committed to abstain from CBW but not from CBW armamant—are such states as Egypt, Iraq, Israel, Libya, North Korea, Syria and Yugoslavia.

71   Julian Robinson, Jeanne Guillemin and Matthew Meselson, "Yellow Rain: the story collapses", Foreign Policy no 68 (Fall 1987), pp 100-117. Back

72   See "10-11 September", Chemical Weapons Convention Bulletin no 18 (December 1992), pp 12-13. Back

73   During the Kargil war last year: see "8 September [Jammu and Kashmir]", The CBW Conventions Bulletin no 46 (December 1999), p 27. Back

74   During the still-continuing war in Chechnya: see "5 October [Moscow]", The CBW Conventions Bulletin no 46 (December 1999), pp 33-34. Back

75   In southern Sudan during July and August last year: see "19 August [Sudan]", The CBW Conventions Bulletin no 46 (December 1999), p 24. Back

76   When CS munitions were used by the Turkish army in an attack on a PKK position in southeastern Turkey on 11 May last year that reportedly resulted in the deaths of 20 Kurdish fighters: see "28 October [Turkey]", The CBW Conventions Bulletin no 46 (December 1999), p 41. Back

77   On the division of labour, see J P Perry Robinson, "Implementing the Chemical Weapons Convention", International Affairs, vol 72, no 1 (January 1996), pp 73-89. Back

78   For example by continuing to consume resources that could better sustain other elements of the array. Back

79   Chemical Weapons Act 1996, section 32. Back

80   HC Debs 23 Nov 95, cols 810-48; 6 Dec 95, cols 413-43; HL Debs 30 Jan 96, cols 1364-82; 27 Feb 96, cols 1428-48; 18 Mar 96, cols 1071-75; and 2 Apr 96, cols 148-51. Back

81   The main expression of the general purpose criterion is in Article II.1(a), where it is said that the "chemical weapons" of the Convention include Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes. Back