Prior to the Chemical Weapons Convention's (CWC) Second Review Conference last month, several attempts were made to raise the issue of the potential for incapacitating chemical agents to skirt the convention's rules. Despite these efforts, when the convention adjourned in mid-April, little had been done to address the issue.
The CWC, which came into force in 1997, bans all chemical weapons. However, among the peaceful uses exempt from the ban is "law enforcement, including domestic riot control purposes." Observers have argued that this exemption creates a potential loophole within the convention, as states might use it to develop novel chemical agents. Under the exemption, standard domestic riot control agents such as tear gas could be seen as a subcategory of law enforcement agents. Because other law enforcement agents are not defined or required to be reported under the convention, the development of novel agents could take place in secret. The lack of state-level objections to the Russian use of a new "nonlethal" chemical agent to break the Moscow Theater siege in 2002 lends weight to this argument. The danger in reading the convention in this way is that allowing the development of new chemical agents by means of this potential loophole could lead to the erosion of the whole prohibition--particularly as rapid developments in the life sciences reveal new means of incapacitation.
I take the pessimistic view that the Second Review Conference of the CWC made a major mistake in failing to deal with this issue. Waiting until 2013--or beyond--to deal with this problem may be far too late."
At the First Review Conference in 2003, states attempted to raise this issue, but they were unsuccessful. At the International Union of Pure and Applied Chemistry meeting in Zagreb in preparation for the Second Review Conference, the problem was discussed in some detail, and the report concluded, "The risks associated with advances in science and technology would increase significantly, should dedicated [chemical weapon] programs be able to take advantage of them. There is, therefore, good reason . . . to carefully assess the CWC compatibility of the development of devices that use toxic chemicals for law-enforcement purposes (including so called ‘nonlethal weapons')."
The report also suggested that parties at the Second Review Conference needed to come to "agreement on the need for the declaration of toxic chemicals for law enforcement purposes (types, qualities and delivery systems)." Such an agreement would increase transparency about what types of agents states are developing and increase trust, but while the report fed into the deliberations of the conference, and a paper by Switzerland raised a series of critical questions about so-called nonlethal chemical agents, the issue did not feature in the final outcome of the meeting. (See Ralf Trapp's further assessment of the Second Review Conference, "When States Fail to Address Incapacitants."
It would appear, however, that the Swiss concerns were not removed from the final consensus agreement until late on in the two-week review proceedings and that a number of others states shared the Swiss's concerns. Taking an optimistic view, by the time of the next review conference in 2013, States Parties will have thoroughly examined this problem and agreed on an effective solution. Yet, in order for that to happen, independent scientists and nongovernmental organizations will have to ensure that states do not lose sight of the problem.
The CWC has accomplished a great deal in a short period of time, but the issues it addresses remain far from the public's attention. As the head of the Organisation for the Prohibition of Chemical Weapons (OPCW) Media and Public Affairs Branch remarked in the run up to the Review Conference: "The successful negotiation and implementation of the Chemical Weapons Convention is among the most significant multilateral achievements of the past 15 years--and one of the least known or appreciated by the public at large." This facet of the CWC will pose particular challenges. The spokesman continued: "Outside of a few specialized journals, scant attention has been paid by media to the steady destruction of chemical weapons and their production facilities, or to the development of OPCW's exemplary inspections regime. Few policy institutes or think tanks have examined the relevance of chemical disarmament for multilateralism and global security and only a handful of nongovernmental organizations are engaged with the issue. Even many in the chemical industry remain unaware of its own key role in concluding the convention and monitoring the production and trade of scheduled chemicals." Thus, the necessary nongovernmental attention is by no means assured.
Considering the scope and pace of change in our understanding of the central nervous system, and the possibilities for misuse of that knowledge in the development of new forms of incapacitants, I take the pessimistic view that the Second Review Conference of the CWC made a major mistake in failing to deal with this issue. Waiting until 2013--or beyond--to deal with this problem may be far too late.