ABSTRACT
Negotiating an international disarmament treaty that has as one of its core requirements the concept of “irreversibility” will be a major task, especially so if the aim is to ensure that nuclear weapons and the means of their production and maintenance are irreversibly destroyed. The task exists on several levels: the practical and technical – how to design and implement an effective verification regime, the legal – how to frame necessary treaty definitions, prohibitions and controls; and diplomatic – negotiating and agreeing on the treaty provisions and the temporal factors. The Chemical Weapons Convention’s main objective is the destruction of chemical weapons and their production facilities, but an equally important objective is prevention of their re-emergence. At the heart of the matter is the concept of dual-use where materials and facilities have both legitimate peaceful purposes and actual or potential for hostile purposes, and the basic starting materials required exist in nature. The same applies in the nuclear context. So what can we learn from the CWC? A treaty with nuclear irreversibility as its goal will face multiple challenges. Setting and agreeing treaty language that is clear on scope and enables trouble-free implementation over many decades will not be easily achieved given the record of existing and previous arms control and disarmament treaties. However, there is likely to be one crucial difference: a treaty with nuclear irreversibility as its sole purpose will not be negotiated and implemented in the sort of conflicted world that we saw during the Cold War.
Introduction
Negotiating an international disarmament treaty that has as one of its core requirements the concept of “irreversibility” will unavoidably be a major task, especially so if the aim is to ensure that nuclear weapons and the means of their production and maintenance are irreversibly destroyed. Such a treaty would implement and secure existing international obligations under the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT). The task exists on several levels: the practical and technical – how to design and implement an effective verification regime, the legal – how to frame necessary treaty definitions, prohibitions and controls; and diplomatic – negotiating and agreeing on the treaty provisions and the temporal factors i.e. the time required to place nuclear weapons capabilities beyond the readily reversible.Footnote1 None of these tasks is likely to be easy. The 1993 Chemical Weapons Convention (CWC), which was some 20 years in the making following conclusion of the Biological and Toxin Weapons Convention in 1972, offers some useful pointers on the road to irreversibility. The CWC’s main objective was the destruction of chemical weapons and their production facilities, but an equally important objective is to prevent their re-emergence once the destruction process had been completed. Re-emergence became the term to describe what used to be known during the negotiations as non-production. It was all very well to destroy chemical weapons (CW) and production facilities, but since the basic ingredients for CW would continue to exist in the civil chemical industry, there would clearly need to be some verification measures to monitor the most relevant parts of industry and other places where toxic chemicals might be produced and used for legitimate purposes. This led after much contested negotiations to the creation of a complex set of verification measures, including declarations and on-site inspections that would apply indefinitely to facilities producing or consuming four different categories of chemicals (Schedules 1,2 and 3 and for Other Chemical Production Facilities – OCPFs).Footnote2 Since it was neither practically or politically achievable to cover all conceivably relevant sites that might be used in a clandestine offensive CW programme, the negotiators also agreed on challenge inspections that could be requested at any facility where non-compliance concerns had arisen. In addition, the negotiators also recognised that as science does not stand still, there might in future be new toxic chemicals that might be relevant, or currently scheduled ones that might need to move between the schedules or drop off completely. Hence, a simplified amendment procedure was included in the final text of the CWC to facilitates such changes where required.
The Convention was thus essentially framed for two phases: CW and CWPF destruction followed by prevention of re-emergence of chemical weapons, something which has proved far more protracted and politically contentious than originally envisaged. At the heart of the matter is the concept of dual-use where materials and facilities have both legitimate peaceful purposes and actual or potential for hostile purposes; moreover, the basic starting materials required exist in nature. The same applies in the nuclear context. So what can we learn from the CWC experience? This analysis is based on the author’s direct experience with both the negotiations of the CWC and its implementation over a 35 year career from 1985 to 2020 in the Foreign and Commonwealth Office’s Arms Control and Disarmament Research Unit.
It will also discuss the challenges of national implementation, framing definitions and common understandings in arms control and disarmament treaties. Review Conferences play an important, though at times underperforming, role in the life of indefinite duration disarmament treaties, so this paper will devote some space to discussion of their relevance.
The Chemical Weapons Convention Case Study 1: Destruction
The CWC uses the term “irreversible” only twice and that is in the definition of “destruction” that appears in Part IV (A) of the Verification Annex:
“Destruction of chemical weapons” means a process by which chemicals are converted in an essentially irreversible way to a form unsuitable for production of chemical weapons, and which in an irreversible manner renders munitions and other devices unusable.
No further definition is offered by what is meant by “essentially irreversible”, but the underlying intent is clear enough in that a chemist would understand that the chemical bonds that make up the toxic chemicals that met the definition of a chemical weapon would need to be broken and the constituent chemicals physically destroyed through incineration, or some other effective destruction process. This would ensure that the resultant waste products would be in a “form unsuitable for production of chemical weapons”. In some cases, it might be feasible to recover the basic chemicals – such as arsenic in the case of Lewisite – and reconstitute a CW stockpile, but in terms of practical chemistry and chemical engineering it would be easier to start afresh. This is what was likely meant by the negotiators’ use of the term “essentially irreversible”. Rendering munitions unusable is an easier process technically since once the agent fill has been removed, it then becomes a case of deforming the casing of an artillery projectile, or cutting a gravity bomb in half as a minimum measure, but sending the scrap metal for recycling makes destruction of these weapons irreversible. That said, the metal could be recast for new munitions unless there were provisions to prevent re-emergence of chemical weapons such as short-notice challenge inspection on any location and at any time.
The Chemical Weapons Convention Case Study 2: Criteria for the Usability of Old Chemical Weapons (OCW)
It might seem odd at first glance to draw attention to the question of OCW in a discussion on the legal aspects of nuclear irreversibility. However, there are important lessons and insights to be derived here. The CWC lays down a specific set of verification provisions for OCW that are generally much less stringent than those that apply to in-service stockpiles. However, one key element of such a regime was not agreed during the Convention’s negotiations and was remitted to the Preparatory Commission to develop; the criteria to be used by international inspectors to assess the usability of old chemical weapons and therefore the nature of the threat they could conceivably pose to the CWC’s object and purpose. The result of such assessments would determine how the destruction of stocks of OCW would be verified. Technically this ought to have been a simple task in which ammunition experts could quickly determine whether a CW projectile was in a usable condition or not, e.g. the driving band was deformed, or the casing was heavily rusted. The chemical agent fill might be leaking, of unknown nature or may have significantly degraded. Indeed it may even still be relatively pure and recoverable for later use in new munitions, thereby posing a threat for re-emergence. That said, the weapon might be unsafe to handle, making easy recovery highly problematic. Despite this, the Preparatory Commission was unable to agree on criteria for use by the Technical Secretariat (TS) in Verification Annex Part IV (B) inspections. In practical terms this did not matter as the TS made use of criteria provided by a few member states. However, the legal point here is that agreeing even on what ought to be ostensibly straightforward definitions or criteria for inclusion in a treaty whose aim is irreversible destruction is not likely to be easy.
The Chemical Weapons Convention Case Study 3: Continuing Verification of Converted Chemical Weapons Production Facilities (CWPF)
The CWC’s Verification Annex Part V permits States Parties to request the conversion of a former CWPF to produce other chemicals. However, it lays down very strict conditions since there were concerns that unless carefully handled such facilities could be easily reconverted for CW purposes. All requests must be approved by the Executive Council, one of the Convention’s policy making organs, and there are strict limitations on the types of chemicals that can be produced. For ten years after the OPCW’s Director-General certifies that the conversion has been completed, inspectors have continuing and extensive rights to inspect the facility.Footnote3 After the elapse of this ten year period, which was designed to ensure that there was no attempt to convert the facility back to CW production, the Executive Council, taking into account recommendations from the Technical Secretariat, is tasked to decide on the nature of continued verification measures. The language seems clear in that some sort of continuing, though perhaps less rigorous, verification would be required. However, this proved to be a contested space with the Russian Federation objecting to any continuing measures. Other Council members felt that some modest residual verification measures were necessary. In the end a compromise was reached that allowed for a more modest set of verification arrangements. In 2012, the OPCW passed a decision on continued verification at converted CWPFs ten years after their conversion.Footnote4 The decision stipulated that each facility would receive at least one further inspection after the ten-year period and then be subject to monitoring by the OPCW for an additional period of five years. The point here is that a treaty that envisages irreversible destruction of a class of weapons and seeks clearly to prevent their re-emergence, a very long-term verification regime is required, and one moreover, that would need to be flexible in light of the specific circumstances. However, after the passage of time the pressing need for such measures in the eyes of some might diminish, but remain bright in the eyes of others. A treaty cannot readily specify exactly which verification measures that might need to be taken in more than a decade’s time. All it can do is to set an enabling provision in the powers and functions of its policy-making organs to decide in light of the circumstances prevailing at the time. This in essence is what happened in the CWC, and as such provides a useful precedent.
Domestic Implementing Legislation
The CWC’s Article VII requires states parties to translate the Convention’s prohibitions and other requirements into domestic legislation, including penal measures. Thus it is illegal to manufacture or possess biological or chemical weapons for instance and penalties are defined for violation of these prohibitions. In the case of the CWC, legal powers are required to enable government departments to collect the information needed for the Convention’s declarations and to ensure that international inspectors have rights of access in accordance with the Verification Annex. These implementing measures are to be made in light of the states’ individual constitutional processes. In the UK case, it is standard practice not to ratify a treaty until the powers to implement it are in place via an act of Parliament. A comparable provision would likely be considered desirable or more likely even necessary in any treaty where nuclear irreversibility is the goal, and the exact scope of that provision would require careful consideration if it was not to simply mirror the prohibitions and requirement specified in the main operative articles of the treaty. A recurring feature following the CWC’s entry into force in 1997 has been the need to provide technical assistance programmes to states parties to help them with the drafting and implementation of the necessary domestic legal measures. Such activities would no doubt also be required in a nuclear irreversibility treaty containing extensive implementation measures; would need substantial resources – both financial and human – over a protracted period of time.
Definitions and Common Understandings
Many arms control and disarmament treaties contain extensive definitions and common understandings as integral parts of their texts, whether in operative articles or annexes or sometimes both as is the case in the CWC. Definitions and Common Understandings or Agreed Statements are essential for two main reasons: first of all they are needed to lay out the scope of what is covered (and what is not covered) by the treaty; second they are there to aid implementation, particularly verification measures such as in Part II of the CWC’s Verification Annex. Definitions and common understandings are thus generally part of the legal obligations contained in the Treaty. Although these can often be straightforward and comparatively easy to draft and agree, at other times they can be technically complex and even politically contentious where textual proposals can be seen, or perceived, as an attempt to narrow or limit obligations.
Review Conferences
Multilateral disarmament treaties usually contain a requirement for periodic review conferences to monitor their operation. The CWC has an express provision in its Article VIII to review the operation of the Convention in light of scientific and technological developments, which is particularly important in the case of its indefinite duration and that the scope of the CWC as it applies to dual-use technologies. Changes in science and technology could have a direct bearing on the scope and implementation of the treaty, so it is crucial for keeping the treaties relevant that states parties have opportunities to consider such developments as they might require amendments or technical changes to the CWC, in particular its verification provisions. Review Conferences can also provide additional or clarificatory understandings the CWC’s scope that impact on its interpretation.Footnote5 Wider political events and developments can, however, prevent consensus agreements at Review Conferences, thereby limiting their utility in shaping the future direction and objectives for the Convention. Sadly, both the Fourth (2018) and Fifth (2023) CWC Review Conferences could not agree on a Final Declaration, largely on account of profound disagreements over the Syrian CW programme.
Conclusion
A treaty with nuclear irreversibility as its goal will face multiple challenges, not least of these will be issues such as those discussed above in the CWC’s experience with negotiating and implementing a complex verification and compliance regime for dual-use technologies, equipment, materials and facilities. Setting and agreeing treaty language that is clear on scope and enables trouble-free implementation over many decades will not be easy if the record of the CWC is anything to go by. However, there is likely to be one crucial difference: a treaty with nuclear irreversibility as its sole purpose will not be negotiated and implemented in the sort of conflicted world that we saw during the Cold War with all its attendant suspicions, and episodic lapses into the freezer when relations between the superpowers chilled even further such as those we are experiencing now following the Russian invasion of Ukraine.
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John Walker
Dr John R Walker was Head of the Foreign and Commonwealth Office’s Arms Control and Disarmament Research Unit (ACDRU) from December 2014 to May 2020, when he retired from the FCO. He joined ACDRU in March 1985. John’s main focus was on the Biological and Toxin Weapons Convention (BTWC), the Chemical Weapons Convention (CWC), the Comprehensive Nuclear Test Ban Treaty (CTBT), and the UN Secretary-General’s Mechanism for investigating allegations of CBW use. In addition, his work also included research on UK nuclear weapons and arms control history and nuclear disarmament verification. He is currently a Senior Associate Fellow at the European Leadership Network and a Senior Associate Fellow at the Royal United Services Institute; a Senior Research Fellow at the Department of Science and Technology Studies, University College London. He has published extensively on British nuclear weapons history and on CB arms control, more generally John’s latest book British Nuclear Weapons and the Test Ban Squaring the Circle of Defence and Arms Control 1974-1982 was published by Routledge in May 2023. He was awarded an OBE in the Queen’s Birthday Honours 2020 for services to British foreign policy.
Notes
1 For the purposes of this project we are working to a provisional definition of irreversibility as follows: “Irreversibility is a feature/quality of a disarmament, or of an arms control process that involves limiting the capacity for re-armament, including the possible re-constitution of aspects of weapons programmes” (Elbahtimy Citation2023).
2 The CWC’s Verification Annex Parts VI, VII, VIII and IX set out the detailed declaration and inspection provisions that are applicable for each Schedule and for the OCPFs. As a general rule the declarations and inspection provisions are in diminishing order of stringency from Part VI to IX, reflecting the different nature of the types of chemicals covered by the different schedules.
3 CWC Verification Annex Part V (85).
4 Annual Report for 2017 on the operation of The Chemical Weapons Act 1996, HC 1601, 15 November 2018.
5 The question, however, whether decisions adopted at review conferences constitute a subsequent agreement (Art. 31 (3), Vienna Convention on the Law of Treaties [VCLT]) or subsequent practice (Art. 32 VCLT) is a matter of controversial discussion, see ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties (2018).