Intention of Article VI: An Australian Drafter's Perspective
This article was originally published in the November 2000 issue of OPCW Synthesis.

By Robert J. Mathews

Historically, parts of the chemical industry have played a major role in CW production programs, for example, the use of industrial dye production factories to supply chlorine, phosgene and mustard agents during World War I. Indeed, it was only because of the rapid growth of the chemical industry in Europe in the latter part of the 19th century and in the early 20th century that chemical weapons were able to be used on such a massive scale in World War I.

And industry involvement did not stop there. Even as the negotiators in the Conference on Disarmament (CD) in Geneva began grappling with the issue of industry verification in the mid-1980s, parts of chemical industry were supplying key precursors (in some cases inadvertently) for the production of CW agents in the USA, the former USSR, and Iraq.

The intention of the Article VI regime was to monitor the relevant parts of the chemical industry,1 through annual declarations and on-site inspection, in order to:

– deter the production, in the chemical industry, of chemicals intended for CW purposes; and,
– provide the necessary confidence that States Parties to the CWC are complying with their obligations under the CWC, and in particular, are not using their commercial chemical industry for the production of CW agents.

It was recognised that, in order to achieve these objectives, the verification regime would need to monitor the relevant parts of the chemical industry with a broad geographic distribution of inspections, with an acceptably low impact on the operations of the chemical industry, and that this regime would have to be flexible and sufficiently adaptable to take into account experience in implementation and changing chemical technology. This paper discusses these aspects of Article VI and associated parts of the Verification Annex from an Australian drafter’s perspective.

Monitoring Relevant Parts of the Chemical Industry

The initial attempt to develop procedures for the routine verification of the chemical industry, which took place in the CD in Geneva in 1985 and 1986, focused on those facilities which produced, processed or consumed Schedule 2 chemicals. The proposed provisions were based on a quantitative/materials balance approach to verify the non-diversion of Schedule 2 chemicals, similar to the International Atomic Energy Agency’s approach to the monitoring of nuclear materials under the Nuclear Non-Proliferation Treaty. This approach was driven by East/West mistrust, and was related to the methods of production of CW agents (and in particular, of nerve agents) in the USA and the former Soviet Union 2 , rather than to the methods that might be used by a CW-proliferator with a less developed chemical industry. 3

At that time most Geneva negotiators apparently considered that it would be sufficient to limit routine on-site inspections under Article VI to Schedule 1 and Schedule 2 facilities. In Australia’s view, such an approach may have been sufficient for an agreement between NATO and the former Warsaw Pact countries, but would have provided little, if any, assurance to developing countries that their neighbours were taking their CWC obligations seriously, and in particular, were not using their chemical industry facilities to develop a CW production capability. 4

Several developments occurred in the latter part of the 1980s, including surveys of chemical industry and production processes, experience with national trial inspections (NTIs), discussions with industry personnel, and the lessons learnt from recent CW proliferation programs. These gradually led to an appreciation by the Geneva negotiators that to restrict the coverage of on-site verification activity only to facilities producing Schedule 1 and 2 chemicals, while ignoring

The Article VI regime was designed to be flexible and open to future adjustment in the light of practical experience gained.

Schedule 3 facilities and other facilities which could be readily adaptable to chemical weapons production, would be to build a serious deficiency into the Convention (the ‘Verification Gap’). 5 It became clear that, if the Convention was to be effective, it had to allow for the inspection of Schedule 3 and ‘CW capable’ or discrete organic chemical (DOC) facilities. 6

On the basis of industry surveys, it was estimated that several thousand facilities may be declared under the DOC regime. However, it was recognised that the declaration of DOC facilities was a transparency/confidence-building measure, and that it would not be necessary to inspect every declared DOC facility for the regime to be effective. Rather, the inspection of a representative number of DOC facilities from among all States Parties possessing DOC facilities would be an effective compliance monitoring activity which—over a number of years—would provide an increasing level of assurance that ‘CW-capable’ facilities were not being used for CW purposes.

In the latter stages of the negotiations, there was preliminary inconclusive discussion of the relative risk posed to the object and purpose of the Convention by facilities declared as Schedule 1, 2, 3 and DOC. For example, Australia argued that a DOC facility producing pesticides which was located in a State with an interest in producing CW would pose a significantly greater risk to the Convention than a small Schedule 1 laboratory located in a State with no interest in producing CW. It was for this reason that the CWC text does not indicate a risk hierarchy for Schedule 1, Schedule 2, Schedule 3 and DOC facilities. 7 The negotiators decided to leave such risk assessments and the allocation of resources to be devoted to inspections of the various types of declared industry facilities to the Secretariat and the Conference of the States Parties, respectively.

Broad Geographic Distribution of Schedule 3 and DOC Inspections

As discussed above, in order to provide an assurance to developing countries that their neighbours were taking their CWC obligations seriously, it was recognised that important benefits would derive from the inclusion of ‘equitable geographic distribution’ as a criterion for the selection of Schedule 3 and DOC facilities for inspection. A significant number of Schedule 3 and DOC inspections in a wide range of States Parties would deter the use of such facilities for CW-related production activities. In addition, it would provide States Parties with a greater incentive to fulfil their CWC national implementation obligations. It was considered that, if each State Party that possesses only Schedule 3 and/or DOC facilities has a high probability of receiving at least one routine inspection a year, then such States Parties would be more likely to establish an effective National Authority, to prepare accurate declarations, to conduct outreach to inspectable facilities, and to have in place the procedures necessary for receiving inspections, including designating points of entry and identifying personnel to act as escorts.

These potential benefits were recognised as depending in large measure on the development of a methodology for the selection of Schedule 3 and DOC facilities for inspection which results in ‘equitable geographical distribution’, as well as on the development of a selection process based on ‘State Party nominations’.The negotiators considered that it would be better for such details to be considered later, rather than to risk delaying the conclusion of the negotiations in Geneva.

Acceptably Low Impact on the Operations of the Chemical Industry

It was recognised from the start that, in order to be acceptable to States possessing a large chemical industry, the regime for monitoring chemical industry under the CWC would have to have an acceptably low impact on the operations of the chemical industry, and that the best approach to achieve this objective was to involve industry representatives. For example, Australian officials initiated consultations with chemical industry representatives (from industry associations and individual companies) as early as 1985.These early consultations demonstrated the benefits of cooperation with industry, and for the remainder of the negotiation of the CWC one of Australia’s key objectives was to encourage input from industry representatives as the various industry verification provisions were being developed. Australia supported the annual meetings of chemical industry representatives with the negotiators in the CD which commenced in June 1987, and hosted the Government-Industry Conference against Chemical Weapons (GICCW), better known as the ‘Canberra Conference’ in September 1989. 8

The CWC is both complex and ambitious in its objectives, the OPCW Inspectorate has developed into a credible and professional body.

The interaction between chemical industry representatives and the Geneva negotiators was one of the most important factors in the development of the provisions for the routine monitoring of the chemical industry. In particular, the representatives were able to provide useful proposals which enabled the achievement of the verification objectives in a way that would result in an acceptably small impact on the operations of the chemical industry, through participation in workshops and national trial inspections. This included developing appropriate ‘managed access’ procedures to provide access to records in a way which did not compromise confidential business information. Discussions with industry personnel also prompted the development of rapid screening methods suitable for on-site analysis to indicate the presence or absence of chemicals listed in CWC Schedules (including family members of the weaponised nerve agents) without providing information on other chemicals present in the sample (the so-called ‘negative proof ’ methods). 9

Another key issue taken up by the industry representatives was the scope of Article VI. Although the industry representatives were initially sceptical about the concept of a broad scope for industry verification, by 1991 they strongly supported the broad scope, based on a short-duration relatively non- intrusive inspection, and recognised that a broad scope for routine industry inspections would reduce the risk of industry sites receiving a challenge inspection.

A Flexible and Readily Adaptable Regime

It became apparent that, because of the uncertainty about the number of facilities that would be declared under Schedules 1, 2, and 3 and as DOC facilities, as well as about their relative risk to the object and purpose of the CWC, it would be impractical to attempt to develop rigid solutions in the Convention text, as the nature of the practical problems would become apparent only in the course of implementation of the CWC. Accordingly, there was an effort to ensure that the Article VI regime was not overburdened with excessive detail. This would enable the Secretariat to implement the monitoring of industry in the most practically effective and cost-effective manner, including the flexibility to focus its inspection effort on those Schedule 1, 2, 3 or DOC facilities which, in its assessment, posed the greater risk to the Convention.

Thus, the Article VI regime was designed to be flexible and open to future adjustment in the light of practical experience gained. Part of the flexible package included a simplified technical change procedure under Article XV to allow changes to certain parts of the Verification Annex containing detailed verification procedures which had yet to be tested in practice.

The simplified technical change procedure under Article XV was also intended for application to certain parts of the Verification Annex in the light of future developments in chemistry and in the operation of the chemical industry that could affect the risk to the CWC. For example, many chemical companies are turning increasingly to the production of chemicals through biotechnological processes, ranging from the use of biomass as feedstock to the use of enzymes as catalysts. 10 Another trend which could impact on industry verification is the development of greater flexibility in chemical production equipment, including greater use of ‘multi-purpose’ production plants. 11

Concluding Comments

Most of the Article VI inspections conducted so far have been Schedule 1, Schedule 2 and Schedule 3 inspections, with a very limited number of DOC inspections. Inspections of DOC plant sites will pose new challenges. For example, DOC plant sites which are subject to routine inspection will range from relatively small plant sites producing 200 tonnes of organic chemicals per year (perhaps producing only one DOC in a single reaction vessel) to very large plant sites containing more than one hundred multipurpose production plants. It should be borne in mind that the principal aims of routine inspections of DOC plant sites will be to check that the activities on-site are consistent with the information provided in the declarations.There is a strong sense that the OPCW Inspectorate will succeed in adjusting its inspection procedures to DOC inspections, which, from this author’s perspective, will eventually become a key (arguably the most important) element of Article VI verification.

NOTES

• 1 Article VI includes the monitoring of facilities beyond what is normally regarded as "chemical industry". For example, based on surveys of chemical industry, it was apparent that there would be very few facilities within chemical industry producing Schedule 1 chemicals—most facilities to be monitored under the Schedule 1 regime would be either chemical defence laboratories or laboratories involved in development of methods of chemical analysis to support verification of the CWC.A number of facilities processing and consuming Schedule 2 chemicals (e.g. ink formulation, flame retardant materials) are not located in what is normally regarded as "chemical industry".

• 2 It is interesting to recall that, at that time, the USA was preparing to recommence the production of chemical weapons (binary nerve agents) after 16 years of "non-production", and the former USSR was generally acknowledged as still producing chemical weapons (although it did not confirm its possession of chemical weapons until 1987).

• 3 For example, Iraq employed Schedule 3 plants, plants originally designed for pesticide production and multipurpose production plants, in its CW proliferation program, rather than typical "Schedule 2 facilities". See J. Gee, "The destruction, removal or rendering harmless of Iraq's chemical warfare capability", Disarmament (New York: United Nations), vol. 15 (1992) no. 2, pp 77-93.

• 4 For example, based on a survey of global chemical industry conducted by Australia, it was assessed that limiting routine inspections to Schedule 1 and Schedule 2 facilities would concentrate 85% of the OPCW industry inspection effort in a relatively small number of developed countries, whereas extending Article VI inspections to Schedule 3 and DOC facilities would result in the majority of countries being subject to routine industry inspections.

• 5 For a detailed discussion of these developments, see Mathews, R.J., "Verification of Chemical Industry under the Chemical Weapons Convention", in Verification 1993, (Verification Technology Centre: London 1993), pp. 41-54.

• 6 The negotiators eventually agreed on the terms "Other Chemical Production Facilities" and "Discrete Organic Chemical (DOC) facilities" as politically acceptable descriptors for "CW-capable" facilities.

• 7 This is in contrast to the risk posed by the actual chemicals, in which it is clearly specified that Schedule 1 chemicals pose a "high risk", Schedule 2 chemicals pose a "significant risk" and Schedule 3 chemicals pose a "risk" to the object and purpose of the Convention.

• 8 The "Canberra Conference" included industry representatives from 66 countries (representing approximately 95% of the world chemical industry).A major outcome from this conference was a much closer understanding between officials and involved industry/association representatives, who pledged their support in the future work.

• 9 Australia, "On-site analysis for verification of non-production of families of Scheduled Chemicals", CD/CW/WP.353, 15 July 1991.

• 10 See, for example, M.K.Turner, "Biological Catalysis and Biotechnology", Chapter 6 in "The Chemical Industry" (Ed. C.A.Heaton), (Blackie, London, 1988).

• 11 In multipurpose plants, the reactors, associated pipework, pumps and valves are typically constructed from a corrosion resistant material to enable the plant to be used for many different types of reactions, including those either consuming or producing corrosive and toxic chemicals (for example, chlorinating and fluorinating chemicals), as well as associated effluent control systems and safety features.The process control unit is typically computer controlled, and is designed to be flexible, such that the reaction conditions can be readily reprogrammed to allow different processes.

• 12 In the early 1920s, there were preliminary discussions within the League of Nations on the feasibility of developing a chemical disarmament treaty. However, on the issue of verification of "non-production" of CW by chemical industry, it was concluded that "it would be useless to seek to restrict the use of gases in wartime by prohibiting or limiting their manufacture in peacetime". (See, for example, Stockholm International Peace Research Institute,The Problem of Chemical and Biological Warfare,Vol. IV,‘CB Disarmament Negotiations, 1920-1970’, 1974, p. 44.).