Where Industry and Security Intersect
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Good afternoon, I am Steve Goldman of the United States Department of Commerce which is responsible for ensuring U.S. chemical industry's compliance with the Chemical Weapons Convention (CWC). My office is responsible for processing more than 700 declarations annually and has hosted 35 inspections since May 2000.
With the eve of the first Chemical Weapons Convention (CWC) Review Conference (REVCON) fast approaching, it is an opportune time to discuss the implementation provisions of the treaty impacting commercial industry and how the verification regime can be strengthened.
From an implementation standpoint, the CWC's requirement of States Parties to enact penal legislation under Article VII is paramount. Implementation ensures commercial facilities' compliance with the treaty's two overarching obligations:
Lamentably, less than half (46%) of all States Parties have informed the Technical Secretariat that they have passed penal legislation, raising questions about their compliance with Article VII. If all States Parties cannot live up to this requirement, the effectiveness of the treaty is undermined.
The second issue of critical importance is universality. While the Convention has more adherents than any other multilateral arms control or non-proliferation treaty, key states remain outside of the verification regime. For example, in addition to the traditional security threats posed by key countries not party to the Convention, the Middle East's chemical production capacity increased more in 2002 than any other region in the world and is expected to outpace all regions except Asia-Pacific in 2003. It is critical that the Technical Secretariat and States Parties redouble their efforts to increase universality.
The Chemical Weapons Convention is a patchwork of balances between verifying activities involving certain toxic chemicals and precursors of non-proliferation concern and ensuring that confidential information is protected and verification activities are not unduly burdensome. I want to stress that the CWC never would have entered into force without the support of the international chemical industry. Efforts to tip the balance of the regime outside the framework established by the Convention are destined for failure.
For example, there have been suggestions that the Technical Secretariat should have an operational role in implementing Article VII's general purpose criterion of ensuring that toxic chemicals and precursors are only "developed, produced, otherwise acquired, retained, transferred, or used...for purposes not prohibited." However, the CWC places the onus of implementation on each State Party, through the enactment of penal legislation, to ensure compliance. Any attempts to alter the requirements of the treaty need to be scrutinized from a non-proliferation and industry perspective.
Nevertheless, there are areas of the CWC's verification regime that can be strengthened by establishing agreed norms where national discretion currently presides. For starters, there has been a lack of focus at the OPCW, and its predecessor the PrepCom, on industry inspection procedures. Instead of focusing on arcane declaration issues impacting only a few facilities, if any, there needs to be discussion at the OPCW on the lack of an inspection methodology for verifying the absence of Schedule 1 chemicals, which applies to all Article VI inspections.
Unfortunately, this has resulted in disparate implementation and conflicting interpretations that resulted in U.S. facilities receiving uncertainties in 2000-2001. It should be noted that the Technical Secretariat acknowledged the uncertainties were not the result of any compliance concern but interpretation differences over access rules. Nevertheless, under the former Director-General, attempts were made to expand the verification regime beyond the procedures set forth in the treaty under the guise of a general inspection aim. However, the general cannot trump the CWC's specific inspection modalities.
Prior to hosting the first U.S. industrial inspection, I instructed my staff to develop a methodology for verifying the absence of Schedule 1 chemicals. These included:
Since the CWC explicitly states that access outside of declared plants is predicated on the need to clarify an ambiguity, Department of Commerce host teams used this methodology to prepare sites for possible clarification requests. Unfortunately, the Technical Secretariat refused to cite any ambiguities and demanded access based on the former Director-General's philosophy of randomly selecting predetermined buildings. Inspection team requests were denied, which resulted in uncertainties. During consultations, I provided former Technical Secretariat management with the Department of Commerce's methodology and asked for theirs. Unfortunately, they were not able to articulate a methodology. This undermines the credibility of the inspection regime.
I am pleased to report that the situation on the ground has improved. Inspection teams are now providing clarification requests when requesting access outside declared plants. As a result, the United States has provided appropriate access to inspection teams which has resulted in all uncertainties being resolved. However, I am still concerned that a viable inspection methodology for verifying the absence of Schedule 1 chemicals is not in place. This should be a focus of OPCW activities.
It was with great satisfaction, therefore, that the United States received Verification Division Director Horst Reeps' offer at the June Executive Council for States Parties to provide input into strengthening the inspection regime. I intend to present the Department of Commerce's methodology and urge others to provide input as well.
Mr. Reeps' offer comes at a critical time when the Technical Secretariat is reorienting inspection activities toward DOC/PSF plant sites. Without a credible inspection methodology for verifying the absence of Schedule 1 chemicals, the ability to conduct effective inspections at large chemical complexes in 24 hours where access to most areas and to records must be agreed by the inspected State Party is called into question. The contention by some that the vagaries of the DOC/PSF inspection regime will allow for more intensive inspections is misguided and contrary to the provisions of the treaty.
Only an inspection regime based on sound methodologies can produce results. The Technical Secretariat's methodology for verifying the non-diversion of Schedule 2 chemicals is a case in point. Inspection teams conduct a material balance of receipts, inventories, process outputs, and off-site shipments to ascertain non-diversion. A similar-type checklist for verifying the absence of Schedule 1 chemicals, with built-in flexibility, should be sought.
In addition to inspection methodology, there are other issues that merit immediate attention by the OPCW:
In closing, I want to reiterate that the Chemical Weapons Convention is only effective if States Parties implement their obligation to outlaw prohibited activities, which includes the ability to ensure that the general purpose criterion is being adhered to.
The CWC is a delicate balance between the interests of non-proliferation and confidentiality, and it was this balance that enables it to be supported by the international chemical industry.
Finally, the OPCW needs to focus its efforts on issues that have universal impact with regard to the verification regime. First and foremost is the establishment of a viable inspection methodology for verifying the absence of Schedule 1 chemicals, especially since the Technical Secretariat intends to reorient inspection activities toward DOC/PSF plant sites. We will be approaching Mr. Reeps in the near future with ideas for strengthening the inspection regime and urge efforts to complete a formal review of the inspection manual. Moreover, the United States will be seeking to address other issues of universal impact to the industry verification regime in order to limit disparate implementation by States Parties and the Technical Secretariat.