My concern with Jonathan Tucker's proposal to establish a new subcategory for declaring "other chemical production facilities" that manufacture peptides is not that it would not cover all incapacitating agents; it is that it would not even cover most. This would make it an easy target for those who oppose efforts to address the incapacitants issue, and those with vested interests in the broader issue of inspections of "other chemical production facilities." Given the challenges surrounding both of these issues, Tucker's proposal strikes me as not the best path forward at this time.
As Ralf Trapp so clearly explains, the crux of the problem is how one draws the line between toxic chemicals that can be weaponized for law enforcement purpose and toxic chemicals that are weaponized for use as chemical weapons. Trapp is concerned that my proposal for States Parties to pursue agreed criteria, standards, and methods to determine whether a toxic chemical or delivery system is consistent with law enforcement purposes would result in an open-ended approach where compliance would depend on how individual states interpret and apply the criteria. I'm not sure how this differs from the present situation, except insofar as it may provide some agreed-upon rules. Yes, some states might see such rules as permission to engage in activities that today are viewed as legally ambiguous–and in this case Trapp's concerns are justified. I'm not sure I see another way forward, however, but would be interested in hearing other ideas for moving us beyond the current stalemate.
Tucker raises two new and interesting points. Regarding the possibility that genetically engineered microbes could be used as delivery vehicles for incapacitants, I agree with Trapp that this belongs in the realm of the Biological and Toxin Weapons Convention (BWC). However, the CWC will remain the central forum for resolving the debate on incapacitants, because, unlike the CWC, the BWC does not provide an explicit exception for law enforcement purposes, and thus states are unlikely to pursue biological incapacitants as long as the issue of chemical incapacitants remains unresolved. If states do end up deeming chemical incapacitants as acceptable under the CWC, then pressure may well arise to allow for biological incapacitants under the BWC. (It also may not, as infectious agents would have longer onset times and be even less predictable than chemical agents in terms of their effect, making them less useful for the types of applications that have been discussed for incapacitants.)
With regard to truth serums, I agree with both Aas and Trapp that this issue goes beyond the CWC to include ethical issues. In fact, the use of a chemical agent for purposes of interrogation probably would not fall under the remit of the CWC. But more than just ethical issues are involved. The use of chemical agents for interrogation would also clearly bring international human rights law into play.
Finally, Aas makes the point that the failure of the CWC's Second Review Conference to set up a mechanism to further address the incapacitants issue means that more scientists, nongovernmental institutions, and others should increase their engagement in the years before the next Review Conference. But engagement requires financial support. Unfortunately, as those of us involved in both biological and chemical weapons nonproliferation efforts know only too well, such financial support is rapidly drying up. If Aas is correct, and I believe that he is, then the future does not look promising. More than the relatively narrow issue of incapacitants is at stake.