International Co-Operation in Chemical Trade: Has the Chemical Weapons Convention Helped?

Spring / April 2001

The Chemical Weapons Convention (CWC) was negotiated, in its final phase, in 1992, was approved by the UN General Assembly in the same year, and was opened for signature in the following year.

When I look back on it now, eight years later, in the context of what has eluded the international community in the area of other weapons of mass destruction (WMD), this strengthens my conviction that the Convention

was a truly ground-breaking accomplishment, not the least because every participant contributed to it in one way or another. Despite the different perceptions, aims and objectives with which different groups of States participated in the negotiations, the Convention was concluded because of the remarkable level of accommodation shown by all participating nations to narrow the gaps between these different perceptions— by agreeing on principles and engaging in a cooperative effort towards global regulation for the common good.

For the developed States, the final impetus for the negotiations on the CWC was provided by the Gulf War, which highlighted the threat of Iraq launching a chemical weapons strike against the coalition force or its allies in the region. Although Iraq did not actually deploy any chemical weapons during that war, the possibility of such a scenario in the future was a matter of great concern to the Western alliance. Consequently, the CWC was perceived as being of paramount urgency. The breakup of the former Soviet Union and the consequent danger of chemical weapons proliferation, due to the lack of control in its former constituent States, might have been another factor in Western calculations on this issue. Political and security considerations were therefore predominant in the urgency attributed by the developed nations to expediting and concluding the negotiations on the CWC.

On the other hand, developing States did not regard chemical weapons as a significant threat to their own security. It is true that some states in the Middle East believed that chemical weapons were the "poor man’s nuclear weapons", and might be an effective deterrent against the perceived Israeli nuclear threat. This belief was certainly not shared by a majority of the developing States. For them, the economic and industrial benefits to be derived from the CWC were the major focus. The unilateral, arbitrary, and discriminatory trade and technology transfer restrictions already imposed by the industrialised States in various ways, but primarily under the umbrella of the Australia Group, had become major impediments to the development of a civilian chemical industry in developing States. These States were, therefore, legitimately worried that industrialised States might be sanctioning the CWC mainly with a view to sanctifying these restrictions and curtailing the growth of civilian chemical industries in developing States. Their concern was magnified by what they perceived as the intrusion of international inspectors and bilateral observers under the proposed verification regime into the chemical industries even of those States that had not declared the possession of a single chemical weapon.

As the negotiating process intensified, the apprehensions of the developing States were heightened by the draft paper of May 1992 by the Ad Hoc Group Chairman. This paper further reinforced both apprehensions that industrialised States were seeking to deny developing States unimpeded access to peaceful chemical technology, material, and equipment, and concerns about the intrusiveness of the verification regime and the possible abuse of challenge inspection procedures. Many of the concerns raised by the developing States were sorted out in subsequent negotiations, but the two groups remained far apart on the crucial issue of international cooperation as embodied in Article XI of the draft convention.

For the developing States, Article XI—relating to economic and technological cooperation and access—became the acid test of a credible Convention. India effectively articulated the desire of the developing States to ensure that, once the Convention was agreed to and had entered into force, all existing discriminatory restrictions on the chemical trade, as well as on technology transfers, should be removed by all States. In particular, they demanded that all existing discriminatory restrictions outside the scope of the Convention should cease to exist amongst States Parties.

The prime vehicle through which such discriminatory constraints were imposed on developing states was the Australia Group of industrialised States. Despite the understanding shown during the negotiations for the concerns of the developing States, several members of the latter group had reiterated their wish to perpetuate the Australia Group and its restrictions. Developing States were united in their belief that, as soon as they agreed to subject themselves to the dictates and the stringent conditions of the CWC, they should not be subject to any other arbitrary regimes such as the Australia Group. Unfortunately, despite intense negotiations and efforts to bridge the gaps on this issue, a solution continued to elude the two sides during the May-June 1992 negotiating phase. The Conference on Disarmament (CD) then decided that since Article XI had the potential to hold up progress toward the CWC, India and the United States—as the representatives of the two sides—should make an effort to come to a negotiating conclusion on Article XI, and should report back to the Conference by the September deadline.

For almost a week, Ambassador Ledogar, representing the United States in the negotiations on the CD, and I, representing India in the same negotiations, engaged in informal but intensive discussions with the goal of seeking a compromise on the critical Article. I suggested changes in paragraph 2 of Article XI, with a view to ensuring that once the CWC came into effect there should be no place for restraints on international cooperation or controls on exports of chemicals, technology, and equipment by a few States acting together outside the scope of the Convention. The US view was that, while our concerns were understandable, and while some amendments were acceptable in order to reflect this understanding, they were not in a position to accept any restraints on their sovereignty and their ability to pursue their national interests.

After intensive efforts, a compromise emerged. The Australia Group members agreed, short of committing themselves to dismantling the Australia Group, to abide by the statement made in the CD on 6 August 1992 by Ambassador O’Sullivan of Australia. The statement clearly indicated the willingness of this group to remove restrictive measures on international cooperation and trade in the chemical field against those States that were parties to the Convention, and to move towards the eventual dismantling of the Australia Group. While this was not fully satisfactory of itself, changes to the language of Article XI, juxtaposed with the Australian statement on behalf of the Australia Group members, enabled developing States to drop their insistence on their proposed amendments and to join consensus, in the expectation that the commitment underlying the 6 August statement would be fully and promptly translated into action. The developing States also felt that the Australia Group would have to dissolve itself, both literally and figuratively, and that the members of this group would abide by the Convention by extending international cooperation and access to chemical technology to all Member States of the OPCW. India’s understanding of this commitment was reinforced by a letter from the then Minister for Foreign Affairs and Trade of Australia to our Foreign Minister, in which he reiterated that "I fully understand and share India’s concern to ensure that no unreasonable restrictions are placed on access to chemicals and equipment and know-how for economic and technological development".¹

Almost ten years after these critical understandings on international cooperation were arrived at, and the CWC was finalised, progress towards removing unilateral or group restrictions on trade in chemicals, equipment, and technology transfers has been slow. Nor are there any activities in sight that might lead towards the dissolution of the Australia Group in the foreseeable future. The developing States were further disappointed when, in the early stages of the Prepcom in The Hague, some members of the Australia Group, including Australia, tried to avoid the commitment given on their behalf in the CD by the Australian Permanent Representative. Despite repeated reminders of this statement and of their obligation to comply fully with the objective of Article XI of the Convention, the members of the Australia Group have done little to facilitate "the fullest possible exchanges in the field of chemical activities for purposes not prohibited under the Convention so as to promote a harmonious economic or technological development of all Stares Parties".²

Even the chemical industries in the developed States saw in the CWC the emergence of new structures in the international chemical trade. To give just one example, the consultant to the German chemical industry expressed the view that "considering the Convention’s Article XI as well as the official statement of the Australia Group during the final phase of the Geneva negotiations, additional export control regimes amongst State Parties to the CWC can hardly continue to exist".³ The legal arguments based on the principle of sovereignty, which justify the continuation of the Australia Group or of national export control measures which violate the spirit of the CWC, have dealt a severe blow to the confidence placed in industrialised States as honourable negotiating partners.

It is my considered opinion that the entire credibility and universality of the CWC depends on the fulfilment of the assurances that were given to the developing States on behalf of the Australia Group in 1992. Why would signatory States not threatened by chemical weapons adhere to the CWC, which places additional burdens on their civilian chemical industries, if the benefits of free international trade and cooperation, unhampered by the Australia Group or similar discriminatory arrangements, are not also available to them?

It would not be in the interest of the international community if developing States were to look upon negotiations for future treaties and conventions providing for the elimination and non-proliferation of WMD with the suspicion that industrialised States do not wish to give up their oligarchy over export controls or their monopoly on peaceful civilian technology, equipment, and material, despite the existence of international agreements to this effect. One of the most fundamental principles that brought the world together on the CWC is the right and expectation of equal treatment for all States Parties to the CWC amongst themselves. The continuation of regimes like the Australia Group fundamentally calls this principle into question.

The future of multilateral treaties or conventions dealing with WMD depends upon the cultivation of mutual trust and confidence between developed and developing States on international cooperation for the peaceful use of nuclear, chemical, and biological technology, unrestricted by ad hoc, arbitrary, and discriminatory arrangements that fall outside the scope of such agreements. There is, perhaps, an inadequate appreciation of this fundamental fact among the industrialised States. The perception of many developing States is that the developed States are unwilling to share civilian technology, and that non-proliferation goals are therefore not being pursued. The indifference shown to Article X of the Biological Weapons Convention (BTWC), also dealing with international cooperation, reinforces this perception.

If the CTBT is now an unrealisable dream, if the inspection regime of the BTWC is still under negotiations, and if the FMCT has yet to get off the ground, it is because several nations harbour grave doubts about promises, made by developed States, of equal treatment, equal rights, and equal obligations. The responsibility for eliminating this distrust and creating confidence lies in fulfilling the promises and assurances of international cooperation that brought about the conclusion of the CWC in the first place.

NOTES

1 - Extracts from the statement of Ambassador O'Sullivan in the CD on 6 August 1992.

2 - Extracts from the statement of Ambassador O'Sullivan in the CD on 6 August 1992.

3 - Extracted from 'The CWC & Barriers to Chemical Trade' by Ernst Wyszomirski in CWC Conventions Bulletin, June 1995.