Disarmament and Development: Article XI of the CWC.

Due to bureaucratic longevity or some other fortuitous reasons, I have had the privilege of being twice nominated as the Permanent Representative of Brazil in Geneva when two key disarmament negotiations were taking place, respectively on the Chemical Weapons Convention (CWC) and on a Protocol, still under discussion, to strengthen the Biological Weapons Convention (BWC Protocol). In both circumstances, the Brazilian delegation was honoured with appointments as "Friend of the Chair" on one of the fundamental issues involved in those negotiations, namely the promotion of international cooperation and assistance and the facilitation of exchanges and trade in equipment and technology for peaceful purposes.

As is known in the case of the CWC, those goals are addressed both in its Preamble and in Article XI, entitled "Economic and Technological Development". It is always useful to recapitulate a few aspects of the negotiation history, as well as some of the deeper motives behind that Article, which played a pivotal political role in our collective efforts to bring the CWC into being, and which continues to represent a major challenge in its implementation and universalisation.

At first sight, one may wonder why issues of cooperation and peaceful exchanges are included in international instruments dealing with weapons of mass destruction and the ways and means of ridding the world of the threat which they represent. Should there be a direct relationship between disarming the world and making it a more peaceful and prosperous place to live in? The reply to that question should apparently be a straightforward "yes". After all, disarmament is not an end in itself, but a means of achieving a better world. Some, however, seem to regard Article XI-like provisions—which are also present in treaties preceding the CWC such as the Outer Space Treaty, the Nuclear Non-Proliferation Treaty (NPT) and the BWC—as more of a "soft clause" than a core, indispensable objective of those agreements.

During the Cold War, the relationship between disarmament and development was emphasised, especially by developing countries, in order to convey their hope that the reversal of the nuclear arms race would eventually free resources for different, peaceful ends. Such a relationship was stressed in the Final Document of the First United Nations Special Session on Disarmament (SSOD-I, 1978):

That call has been frequently reiterated since then, not least because SSOD-I was the only Special Session on Disarmament ever to arrive at a Final Document by consensus. Sadly, but not surprisingly, with the end of the bipolar confrontation, the so-called "peace dividend" turned out to be a mirage. Although there were reductions in military budgets in some quarters, new justifications were often found to divert resources to other expensive military projects.

Incidentally, it seems that one of the true legacies of the Cold War was its logic of mutual suspicion and systematic deception, which now makes it more imperative than ever for disarmament and non-proliferation agreements to have built-in provisions to verify compliance. I am not contending, of course, that verification tools are neither necessary nor desirable. But these "peace liabilities" do have a cost, which must be shared by all States which are party to such agreements, irrespective of whether they ever possessed or intended to possess the proscribed weapons.

In any event, the relationship between disarmament and development cannot be confined to expectations that were nurtured during the Cold War. It has, indeed, to do with one of the basic reasons that, at any time, brings States together to conclude agreements. Although this may sound obvious, agreements are expected to attain common objectives by often reconciling different national perspectives and priorities and finding ways of giving expression to them. A multilateral verification regime would make little sense if it was established only among a restricted group of "like-minded" States. Setting up a reliable, comprehensive and globally oriented instrument, as the CWC is meant to be, required and still requires (since we are speaking of "work in progress") a truly multilateral process that engages, and is perceived as advantageous to, all participants.

It is on that account that achieving a world free from weapons of mass destruction and promoting peaceful activities came to be seen by many as the two "pillars" of the CWC. One of these goals should not be pursued at the expense of the other. Whereas cooperation and transfers must not jeopardise compliance with weapons-related prohibitions, it is equally true that efforts in that direction should not result in disincentives or obstacles to peaceful exchanges and legitimate trade. On the contrary, they are supposed to be fostered, especially between and among States that are committed to the peaceful uses of chemistry and that are bound by the multilateral verification mechanisms geared to ensure the achievement of that goal.

The provisions of Article XI are commonly divided into their "promotional" and "regulatory" aspects. Broadly speaking, what is understood as "promotional" is the facilitation of, and the right to participate in, exchanges of and trade in chemicals, equipment and scientific and technological information for peaceful purposes. In turn, the "regulatory" clauses contain guarantees that measures to be taken by States Parties in the field of transfers and export controls should not hamper the economic and technological development of other States Parties.

Such provisions are to be read in conjunction with the mechanisms established under the CWC to regulate transfers. Such mechanisms can be seen as serving two basic purposes. Firstly, they provide guidelines for the national implementation of one of the Convention’s fundamental obligations, i.e. of the obligation not to "assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention". States Parties are required to adopt and enforce legislation to prevent natural and legal persons from conducting prohibited activities. This would include implementing and/or reviewing export control legislation in accordance with the provisions of the CWC. Secondly, such mechanisms are aimed at determining access or non-access for States not party to items listed in the Schedules to the Convention, and, in so doing, at providing tangible incentives for States to join the CWC. Governments and business should be fully aware that those incentives work in two ways: whilst they are expected to promote cooperation and peaceful exchanges among States Parties, they may also give rise to potential losses for the chemical industry in States not party to the Convention.

As Article XI was an essential component of the overall balance of objectives envisaged under the CWC, a genuine political effort to reconcile different concerns and priorities was required. In its capacity as the "Friend of the Chair", the delegation of Brazil was extensively involved in the promotion of the understanding that made possible the final agreement on Article XI.

As the negotiation approached its final phase, a number of delegations seemed prepared to go as far as refusing to accept the stringent verification provisions then under consideration in other parts of the draft Convention if their ideas on the subject of "economic and technological development" were not incorporated. Others had still to be convinced that transfer controls should be introduced into the Convention. This situation remained unchanged almost until the end of the negotiations, as a looming threat to the balance present in the language under discussion.

Of special difficulty were the "regulatory" aspects of Article XI, and, in particular, the question of the future of informal export-control arrangements outside the Convention, such as the "Australia Group". At one end of the spectrum there were those who viewed this kind of informal arrangement as discriminatory and incompatible with a fully-fledged multilateral verification regime. They argued that any such arrangements should be abolished upon the entry into force of the CWC, as the Convention would have from then on become "the" multilateral framework.

At the other end of the spectrum, the members of the Australia Group envisaged an indefinite duration for their own arrangement, claiming that the two regimes were perfectly complementary. They seemed willing to put the CWC through a trial period during which they would be able to observe its implementation and assess the degree of compliance with it. Nuances of positions could, however, be detected, since some members of the Australia Group seemed more prepared than others to contemplate the future convergence of this arrangement with the CWC. In accepting the final package, they offered their own interpretation of Article XI in a joint statement delivered on 7 August 1992, in which the following commitments are worth highlighting:

Despite the need felt by those delegations for such a statement, the result of discussions regarding Article XI and export controls made it clear that it is possible to adopt multilaterally negotiated rules to govern the international exchange of sensitive goods and technology. A meaningful and workable alternative of a universal character to informal export control regimes was established under the CWC. The prospect is that its multilaterally agreed framework, under the supervision of the OPCW’s Executive Council and Conference of the States Parties, assisted by the OPCW Secretariat, will be effective, free from uncertainties, and capable of ensuring compliance.

In line with its stance on the CWC, Brazil has also been contributing to an exploration of middle ground solutions on that same question in the context of the negotiations on the BWC Protocol. More recently, in a statement made on 27 March 2000, on the occasion of the BWC’s 25^th anniversary, I expressed Brazil’s belief that informal arrangements in the chemical and biological fields might not per se, in practice, contradict the BWC. On the other hand, it would be hard to argue that the two regimes are perfectly complementary, and might therefore coexist for the indefinite future. As a matter of principle, international endeavours should converge on the continuous strengthening of multilateral legal frameworks.

We have thus advanced a possible basis for an understanding that would build upon, but would not necessarily reproduce, the terms of the agreement achieved under the CWC. In broad terms, what we suggested was the acceptance of a phase of transitional coexistence, with the gradual convergence of any informal arrangements with the regime of the BWC Protocol. The Protocol’s transfer control mechanisms and listed items should be revised, updated and regularly improved, with a view to ensuring their growing comprehensiveness and effectiveness. States Parties would be expected to review their national export-control legislation, as well as any mechanisms agreed in any informal arrangements in which they participate, in order to bring them into conformity with the obligations assumed under the BWC Protocol. Most importantly, the Conference of the States Parties would be entitled to review the implementation of such obligations, and to make recommendations to States Parties participating in informal arrangements.

Brazil’s orientation in the negotiations on the CWC and the BWC Protocol has, in sum, been driven by its deeply-rooted conviction that disarmament and development are intrinsically related, and deserve equal attention. That applies to what States and civil society at large are expected to do, and corresponds to the tasks entrusted to the international bodies created to carry forward these objectives. The excellent reputation established by the OPCW in its initial phase has been of the utmost importance in this process. Together with its verification mandate, the Organisation has put in place several programmes that are effectively contributing to the promotion of international cooperation and assistance for peaceful purposes. Although many challenges lie ahead, the implementation of the CWC has been a success story. From a long-term perspective, it has indeed been a telling example of the international community’s endeavours—as envisaged in the UN Charter—not only to "save succeeding generations from the scourge of war", but also to "promote social progress and better standards of life in larger freedom".

Ambassador Celso L. N. Amorim is a career diplomat and is currently the Permanent Representative of Brazil to the United Nations and the World Trade Organisation in Geneva. He occupied the same position from 1991 to 1993, having followed the CWC negotiations and signed it on behalf of Brazil. He has twice presided over the Conference on Disarmament, in 1993 and 2000. Among other government positions, he was also the Permanent Representative of Brazil to the United Nations in New York from 1995 to 1999, in which period he presided over, inter alia, the United Nations Security Council and the UNSC Panels on Iraq. He was Minister of External Relations of Brazil from 1993 to 1994.