Chapter-4

INDIA AND CHEMICAL WEAPONS CONVENTION

IMPLEMENTATION MEASURES

The Chemical Weapons Convention1 (CWC) is intended to be a verifiable

comprehensive ban on chemical weapons as an entire category of weapons of mass

destruction. Today there are 145 parties to the Convention. A further 29 States have

signed it and they are, in accordance with Article 18 of the 1969 Vienna Convention

on the Law of Treaties, under the interim obligation to refrain from any acts which

would defeat the object and purpose of the treaty. Thus the conventional comprehensive

ban on chemical weapons under any circumstances has nearly become a universal norm.

Negotiations on a comprehensive ban on Chemical Weapons took place in the Eighteen

Nation Disarmament Committee (ENDC) Conference of the Committee on Disarmament

(CCD), the Committee on Disarmament and, since 1984, the Conference on

Disarmament (CD). The thrust of the negotiations revolved around a total ban on

chemical weapons. This is the principal running theme of this thesis. The key question

remains, however: Is the ban enforceable? The ability to enforce a ban gives it its true

meaning. In the absence of effective enforcement, universality remains a hollow

accomplishment.

India and the ewe Implementation

India actively participated in the negotiations of the Conference on Disarmament that

yielded the Chemical Weapons Convention (CWC) in 1993, and co-sponsored the draft

text in the United Nations General Assembly (UNGA). India was an original State Party

to the Chemical Weapons Convention, which it ratified on 3 September 1996, ahead of

Pakistan and China. This was despite strong opposition from its armed forces, which

were convinced that Pakistan and China had chemical weapons stockpiles and

manufacturing facilities that they would not admit to India also exhorted Pakistan and

other countries to join the CWC, 2 and it established a National Authority3 under the

1993 Convention on the Prohibition of the D~:velopment, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, entered into force on 29 April 1997. Text as corrected and changed, available at http://www.opcw.org .

. "India Urges Pakistan to Rati(y CWC", The Hindu (New Delhi), 29 May 1997.

250

Cabinet Secretary to collate information and fulfill its obligations under the CWC.

During 1991 a number of attempts were made to obtain regional agreements on

chemical weapons and other weapons of mass destruction. India announced that it was

interested in entering discussion with Pakistan about chemical weapons following reports

that Pakistan was in the process of acquiring chemical weapons. 4 Talks between India

and Pakistan took place in 1991, and it was agreed that further talks 'Nould be held. 5

In 1992 India signed "Joint Declaration on the Complete Prohibition of Chemical

Weapons" with Pakistan in New Delhi. 6 The Joint Declaration reaffirmed the

commitment to durable peace and the development of friendly and harmonious relations

betwe~n both sides and the role of confidence building measures in promoting such

bilateral relations based on mutual trust and goodwill. It further stated that disarmament

agreements constitute an important confidence building measure and a complete and

effective prohibition of chemical weapons will contribute to the security of all states.

The Joint Declaration also reaffirmed their respective commitment to the 1925 Geneva

Protocol which primarily deals with the prohibition of chemical and biological warfare.

Another highlight of the Joint Declaration is to exercise both countries right to develop

their chemical industry and related applications and products only for peaceful purposes

and welfare of the people.

The CWC prohibits the development and acquisition of the chemical weapons and

requires the elimination of chemical weapons stockpiles and production facilities w!thin

established timeframes. This is one of the main objectives of the CWC. The CWC

defines all toxic chemicals as chemical weapons unless they are held for legitimate

purposes and held in types and quantities appropriate for such a purpose. This is known

3( ••• continued) 3 St:t: Chapter II of "'The Chemical Weapons Convention Act, 2000" 'by India. It mainly consists of the

establishment of National Authority, its powers and functions, its submission of initial, annu II and other periodical declarations to organization, appointment of enforcement officers, the power ofnatioual authority to issue directions, power of Central Government to constitute Committee and Power of National Authority to call for information, etc.

6

See Arms Control Reporter, Sheet 704.B, 490, July 1991. See also S.J. Lundin and Thomas Stock, "Chemical and Biological Warfare and Arms Control Developments in 1991" in Stockholm International Peace Research Institute (SIPRn Yearbook 1992: World Armaments and Disarmament (Oxford: Oxford University Press, 1992), pp.147-86.

"Pakistan, India to Discuss Limiting Chemical Arms", BK 3110155991, Islamabad Radio, Pakistan Network, 15 GMT, 31 October 1991 (in Urdu), in FBIS-NES-91-212, 1 November 1991, p.86. See also S.J. Lundin et. al., SIPRI Yearbook 1992, ibid.

See, the 1992 India-Pakistan Joint Declaration on the' Complete Prohibition of Chemical Weapons. See also, < http://projects.sipri.se/cbw/docs/cbw-india-pakistan.html > accessed on 3 February 2004.

251

as the General Purpose Criterion (GPC) and is the key yardstick for judging whether

any activity in a state in compliant with the CWC. 7 The Chemical Weapons Convention

Act, 2000 by India" defines "Chemical Weapons" as it is in 1993 Chemical Weapons

Convention. "Chemical Weapons" means: 8

1.

ii.

iii.

the Toxic chemicals and their precursors, except where intended for purposes not prohibited under die Convention, as long as the types ·and quantities are consistent with such purposes;

the munitions and devices, speCifically designed to cause death or other harm through the toxic properties of those Toxic Chemicals specified in sub-clause (i) which would be released as a result of the employment of such munitions and devices;

any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in sub-clause (ii) together or separately.

India recognized the need for transparency and effective national implementation of its

obligations under the CWC. The Biological and Toxin Weapons Convention (BTWC)

and the CWC contain similar provisions, no one can assume that India's negotiating

experience with CWC influenced its views on negotiating the BWC Protocol. Yet it

would be simplistic to assume that the two Conventions are identical, and India believes

that it would not be possible for the verification regime laid down in the ewe to be

replicated in the BWC.9 An important difference between the contexts of the two

Conventions is that chemical industry is older and more established than the

biotechnology industry; it is likely to witness radical discoveries or changes in its

manufacturing process. 10 The biotechnology industry, on the other hand, is new,

dynamic, and fast-growing and industry leaders have "argued that [it] is more

vulnerable to loss of proprietary· information than the chemical industry". A further

difference is that, unlike chemical weapons biological materials intended for military

purposes can be rapidly produced and easily destroyed. These essential differences came

10

See the 1995 Chemical Weapons Convention (CWC), Article II, para.l which deals with definitions and criteria related to "chemical weapons", "toxic chemical", "precursor", "old chemical weapons", "abandoned chemical weapon" and "Riot Control Agent".

See Text of Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their destruction (1993), available at <http://www .opcw .org > and "The Chemical Weapons Convention Act, 2000" by India.

Annual Report l997-98, Ministry of External Affairs (MEA), Government of India, New Delhi, p.92.

For a detailed discussion, see P.R. Chari and Giri Deshingkar "India: Straddling East and West" in Susan Wright (ed.), Biological Warfare and Disarmament: New Problems? New Perspectives (Boulder: Rowman and Littlefield Publishers, Inc., 2002), p.247.

252

to influence India's rethinking on the CWC's highly intrusive verification provisions,

and the ease with which "challenge" inspections could be launched under it.

The CWC contains an ambitious verification regime envisaging comprehensive data

reporting and detailed on-site inspections. All State Party's facilities that produce or

consume treaty-limited "schedules" chemicals above certain levels or thresholds, are

obliged to report those activities under the CWC. Any facilities that meet specified

production or consumption thresholds found in the ewe must be "declared" by the

State Party and hecome subject to routine inspections. They consist of an initial

inspection and periodic follow-ups, called systematic or routine inspections. The

purpose of routine inspections is to verify, through on-site inspection, each State Party's

declared chemical activities. The Technical Secretariat of the CWC's ()-ganization for

the Prohibition of Chemical Weapons (OPCW) reviews data declarations and conducts

on-site inspections using multinational inspection teams employed by the

organization. 11 Cor.cerns about compliance with the Convention, including those not

resolved during routine inspections, can be addressed through challenge inspections.

Conducted by the OPCW, a challenge inspection may be requested by any CWC State

Party at any facility believed to be conducting prohibited CW activities. State Parties

to the CWC do not have the right to refuse a challenge inspection. No challenge

inspections, however, have been initiated to date. The first challenge inspection is long . overdue, as conducting a challenge. inspection would put all other States Parties on

notice that the ewe non-compliance would not be tolerated, and this would invigorate

the deterrent value of the verification regime.

It is widely acknowledged that India has an extensive civilian chemical and

pharmaceutical industry and annually exports considerable quantities of Schedule 2 and

3 chemicals (which has elaborately been mentioned in the ewe text) to countries such

as the United Kingdom, United States, and Taiwan. India does have a defensive

chemical warfare program, overseen by the Ministry of Defence. The main research

institute overseeing India's military and civilian involvement with chemicals and dual

use materials are the Defence Research and Development Organization (DRDO) and the

II See Arpit Rajain. "CWC and BTWC: Lessons from the Verification Process" in P.R. Chari and Arpit Raja in (eds.), Biological Weapons: Issues and Threats (New Delhi: India Research Press, 2003), pp.l-15.

253

Department of Chemicals and Petrochemicals, respectively .12 Within the Ministry of

Defence, the Chemical Weapons program is overseen by the Department of Defence

Research and Development (DDR&D), which is headed by a Secretary, who is also the

Scientific Adviser to the Defence Minister. The main function of the DDR&D is the

foundation of research, design, and development plans for equipment used by the three

military services. Reporting to the DDR&D is the DRDO, which administers the

government laboratory working in the chemical weapons area. The DRDO laboratories

interact with a number of academic institutions across India, including the Indian

Institute of Technologies (IITs), and work closely with the private sector for the

manufacture of DRDO laboratory-produced technologies. The DRDO laboratory in

Gwalior is also a regional training center for the OPCW. Chemical defense-related

activities also occur outside the DRDO within the three military services. 13 The Indian

government has set up Nuclear, Biological and Chemical (NBC) warfare directorates

in the Army, located in Pune, Maharashtra; the Navy at INS Shivaji, in Lonavala,

Maharashtra; and the Air force, In Chandigarh.

The CWC-verification system has several components. Some are inspection activities

of various types. These are the "verification measures provided for in this Convention"

which the OPCW Technical Secretariat, according to the CWC Article VIII,37, must

carry outY More specifically, according to the CWC verification Annex Part 11.3,

these activities are to be performed by the Secretariat's "designated inspectors and

inspection assistants", and only by them. 15 Article IX of the CWC16 and Part X of

the Verification Annex specifically details the verification system remain the declaration

12

13

14

IS

16

See Nuclear Threat initiative website http://www.nti.org/e-research/profiles/india/chemical 2321-2322.html> accessed on 3 February 2004. See also DRDO website at http://www.drdo.com.

Ibid.

Article VIII. Para 37 of the Chemical Weapons Convention reads as: "The Technical Secretariat shall assist the Conference and the Executive Council in the performance of their functions. The Technical Secretariat shall carry out the verification measures provided for in this Convention. It shall carry out the other functions entrusted to it under this Convention as well as those functions delegated to it by the Conference and the Executive Council".

See the Verification Annex, which elaborately deals with the verification under the CWC. Text of Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, available at http://www.opcw.org.

Article IX, para I of the CWC reads as: "States Parties shall consult and cooperate, direc;ly among themselves. or through the Organization or other appropriate international procedures, including procdures within the framework of the United Nations and in accordance with its Charter, on any matter which may be raised relating to the object and purpose. or the implementation of the provisions of this Convention".

254

activities: Collection, reporting and processing of specified kinds of information that

relate to chemical weapons or to technologies that could be used to make them. Herein

lies a division of labour that underpins the entire verification regime. India now believes

the CWC's highly intrusive verification provisions could prejudice the confidentiality

of proprietary information about pharmaceutical products while doing nothing to detect

illegal activity .17 Nevertheless, India does appreciate the need for transparency and for

effectively implementing statutory commitmen!s accepted under the Biological Weapons

Convention.

National Authorities Under CWC: An Overview

The National Authorities are responsible for collecting and reporting the information

that the CWC obliges States Parties to declare either at regular intervals or when

occasion arises, depending on the type of information involved. The Technical

Secretariat is responsible for receiving and processing the declarations and, through

'routine inspection' procedures, for validating some of them. To be able to make the

declarations, the National Authorities must have entered into an intimate monitoring

relationship withal! the relevant parts of their countries' technological base, including

civil industry. High standards of monitoring are, in principle, assured through mutual

scrutiny of the National Authorities and the Technical Secretariat instituted by the

international procedures prescribed under the treaty. 18 The possibility of a short-notice

challenge inspection at virtually any location is a modality also prescribed by the ewe

to deter possible infractions. The establishment of the National Authority for the CWC

implementation in India has mentioned in the Chemical Weapons Convention Act, 2000

by India. Chapter II of the Chemical Weapons Convention Act stipulated that:

Article 6(1):

"For the purposes of this Act, the Central Government shall establish by noti.fication m t~e Offi~ial Gazett~. an Authori~y to be known as' the Na!Ional Authon.ty for Impl~mentmg tbe provisions of the Convention which shall consist of a Chairperson and such numbers of Directors as may be appointed by the Central Government".

The powers and functions of National Authority are as follows: 19

17

18

19

See P.R. Chari and Giri Desingkar, n.IO, p.247.

See Articles VII and VIII of the 1993 Chemical Weapons Convention which deals with the National Implementation Measures and the Organization respectively.

See. Chapter II, Articles 7 and 8, The Chemical Weapons Convention Act, 2000 by India.

255

Subject to the provisions of the Chemical Weapons Convention Act, it shall be the

general duty of the National Authority to fulfil, on beha!f of the Government of India,

the obligations under the CWC; the National Authority Act as the national focal point

for effective liaison with the organization and other States Part1es on matters relating

to the CWC; interact with the organizations and other States Parties for the purposes

of fulfilling the obligations of the Government of India under the Convention; monimr

compliance with the provisions of the Convention; regulate and monitor the

development, production, processing, consumption, transfer or use of Toxic Chemicals

or Precursors as specified in the Convention; make request to, or to receive request

from, a State Party for assistance and protection under Article X, against the use or

threat of use of Chemical Weapons; manage routine inspection or Challenge Inspection

or managing investigation, in case a complaint of use of Chemical Weapons or riot

control agents as a method of warfare is received from the Organization; conduct

inspections; interact with the Organization in respect of acceptance of request 9f India

for Challenge Inspection or to counter any frivolous or defamatory request made by. any

State Party against India to the Organization; scrutinize and accept list of Inspectors and

to verify the Approved Equipment brought by an Inspection Team on to the Inspection

Site; provide escort to the Inspection Team and the Observer within the territory of

India; identify and oversee the closure and destruction of chemical weapons, Chemical

Weapons Production Facilities, Old Chemical Weapons or Abandoned Chemical

Weapons; negotiate Managed Access during the Challenge Inspection ensure

decontamination of Approved Equipment after completion of an Inspection; advise

Central Government for laying down safeguards for transportation, sampling or storage

of Chemical Weapons and fixation of standards for emission or discharge of

environmental pollutants arising out of the destruction of Chemical Weapons, Old

Chemical Weapions, Abandoned Chemical Weapons or Chemical Weapon Production

Facility; ensure data base confidentiality and maintain secrecy of it; facilitate exchange

of scientific and technological information relating to developments in chemicals; call

for such information from any person which the National Authority has reasonable

cause to believe; approve and declare, on behalf of the Government of India, a single

small-scale facility for production of Toxic Chemicals listed in Schedule 1 in the Annex

on Chemicals; provide training to enforcement officers; ensure protection of

environment, health and safety of the people during transportation, sampling, storage

256

or destruction of chemical weapons, Chemical Weapons Production Facilities, Old

Chemical Weapons or Abandoned Chemical Weapons; co-ordinate exchange of scientific

and technological information among laboratories handling Toxic Chemicals or

Precursors; and determine from time to time, t~e quantity limit that a person at any time

may produce, otherwise acquire, retain transfer or use any Toxic Chemical or Precursor

listed in any of the Schedules 1 to 3 in the Annex on Chemicals to the Convention, any

Discrete Organic Chemical containing elements of phosphorous, sulphur or fluorine for

purposes not prohibited under the ewe.

Parliamentary Approval of Treaties in India

In India the task of treaty negotiations with foreign powers is essentially a part of the

functions of the executive. It is for the Government of India to enter into and ratify

treaties and agreements. It is not obligatory on the part of Government to seek approval

of Parliament to such treaties, unless there is a provision in the treaty itself to that

effect. Parliamentary approval of treaties in India can be achieved throug~ three

ways: 20 (i) By discussion; (ii) By legislation; and (iii) By resolution. Treaties and

Agreements are discussed in Parliament before or after ratification. Discussion may take

place on a motion moved by the concerned Minister or by a private member. Sometimes

they are merely discussed and no vote is taken and at tjmes, amendments are moved and

put to vote. Where legislation is required to be enacted to implement an Agreement,

such legislation is brought forward invariably. The general practice is that Resolutions

are occasionally tabled by ministers seeking approval of Parliament to them.

Chemical Weapons Convention Bill: Debate in Parliament

India has been one of the first countries t~ have signed the Chemical Weapons

Convention (CWC) along with other countries and has been one of the strong supporters

of the objectives for which this Convention has been·effective. In order to comply with

the CWC obligations and implementation measures, India has already taken certain

steps. India is one of the few countries which has already made some disclosures, which

were required. The Chemical Weapons Convention Bill, 2000 before the House which

will, in fact, help and enable India to complete obligations which India has already

made to the international community. After the passage of the Indian Chemical Weapons

20 For a detailed discussion, see Lok Sabha Secretariat, Parliament and International Treaties (New Delhi: Lok Sabha Secretariat, 1976), pp.?-30.

?::.7

Convention Bill, 2000 in the Rajya Sabha, the Bill which has been brought before the

Lok Sabha. 21 This Bill is, in fact, a part of the implementation process. The Rajya

Sabha gave effect to the Convention on the Prohibition of Development, Production,

Stockpiling and Use of Chemical Weapons and on their Destruction and to provide for

matters connected therewith or incidental thereto, as passed by Rajya Sabha, be taken

into consideration. 22

The Chemical Weapons Convention Bill, 2000 deals with the very first step ever taken

by the international community in all history since the beginning of warfare to

completely ban and completely eliminate an entire category of weapons. In

Parliamentary debates on this Bill, there have been discussions on the largescale use of

chemical weapons during different period worldwide. The Chemical Weapons had a

devastating effect. Even in the United Nations it has taken over a half-a-century since

its establishment for such a major step to be taken as to ban an entire category of

weaponsY India is not merely limiting itself to. a technical matter relating to the

implementation of one many conventions, which it has acceded to at the UN, but it

dealt with a truly historic development in the development of the history of mankind. 24

The Government should draw attention to the ~lose and integral link between the CWC

on the elimination of one category of weapons of mass destruction. One should consider

the immense damage that can be brought by the use of chemical weapons and then

considers that this as nothing compared to the damage that could be brought by any use

of nuclear weapons.

India and Pakistan have been arguing that if nuclear weapons have been invented,. they

cannot be disinvented. But that argument applies as well to chemical weapons. They

have been invented, they cannot be disinvented, and yet, the international community

has concluded that they can nevertheless be destroyed and eliminated. Thus, the basic

argument made by those who want the retention of the nuclear weapons is repudiated

by the CWC. During the discussion, the current international context got attention.

21

22

23

14

The discussion on "The Chemical Weapons Bill, 2000" in the Lok Sabha. The Bill is piloted by the Honourable Minister of Chemicals and Fertilizers, Sri Suresh P. Prabhu, 16 August 2000.

See, The Chemical Weapons Convention Bill 2000, as introduced in the R?jya Sabha, Bill No.XXXI of 2000.

Discussion on the Chemical Weapons Convention Bill, 2000, 16 August 2000 by Mani Shankar Aiyar.

Ibid.

258

Even as the US negotiators had, with no very great difficulty, affixed their signatUres

to the CWC and they also did so with regard to the Comprehensive Test Ban Treaty

(CTBT) whereas the CWC, after a fair amount of negotiation between the US Congress

and the White House reached a point where the US Congress ratified the CWC, this has

not happened with regard to the CTBT. 25 Now, India have waited until the US, which

is a prime element in anything to do with weapons of mass destruction, undertook the

definitive step of ratifying the CWC before coming to this House with this E:ill. The

Schedule attached to this Bill which is the text of the International Convention, that in

the "General Obligations" under Article 1, if in the first four Clauses, substitute the

phrase 'Chemical Weapons' with 'Nuclear Weapons'. There is no logical reason that

countries which possess chemical weapons and.agree to their elimination in terms of this

Convention cannot also negotiate an agreement under which they will agree to the

elimination of the nuclear weapons. India has before it a document which dates back to

1988, the Rajiv Gandhi Action Plan relating to the elimination of nuclear weapons in

a timebound framework. There is always a scope for negotiations.

Chemical weapons are the most inhuman of all the weapons of warfare. India, true to

its ethos, came forward wholeheartedly and was one of the foremost nations to sign the

CWC. The ewe holds great importance, specially India's policy towards securing

world peace, with democratic ideals. 26 The ewe is certainly non-discriminatory in

character. All are almost dealt with equally. This is an important step because that is

the policy of having non-discriminatory international treaties, which is of great

importance. The CTBT has also to be similarly discriminatory, in clearly declaring that

the nuclear weapons are outlawed and have to be eliminated by one and all, without any

discrimination and in a given time schedule. In the first place, the provisions of the

Convention from part of the schedule. This schedule will also be adopted by India.

Therefore, the Schedule, being exactly the provisions of the CWC, is a substantive law.

It will have the force of law.

And here we have a peculiar situation in Clause 3. According to Clause 3, the

Government, without consulting even this House, without taking this House into

Ibid.

Discussion on tht: Chemical Weapons Convention Bill, 2000, 16 August2000 by G.M. Banatwalla, in the Lok Sabha. See also < hup://parliamentotindia.nic.in >.

259

confidence, can make any amendment in the Schedule, in the substantive law, in the

provisions in order to bring it in conformity with any amendment that may have been

made to the Convention there. The amendments may be made there. But still, India will

have to consider whether those amendments are in consonance with India's national '

interest and national security. Speaking in Parliament, one member p\lt forward like

this:

"Today this Parliament tries to give the force of law to all the provisions of the Convention. Tomorrow, if any provision of the Convention is· amended there, then before an Government comes forward, without consulting the Parliament, to amend our law itself, this Parliament or this House must have the right to consider those amendments as to whether those amendments are acceptable to our country, to this House and whether they are in our interest, in the interest of national security and whether they are just and fair or not. Therefore, I have given an amendment to that particular effect also" . 27

The USA reserves the right of the Senate, under the Constitution, to add to any

amendments or reservations in the provisions of the Convention. The USA is so zealous

in protecting the authority of its Senate that if there are any additions on reservations, '

any additions to the provisions of the Convention, then the Senate will consider it. The

implication is as simple as that -- India should not have a casual attitude towards the

entire question of chemical weapons. Indeed, the Bill and the CWC augurs well for

peace, but that does not mean that the democratic procedure be given a go-by. 28 The

Bill seeks to create a National Authority, but then this National Authority must also be

given specific right to create a Technical Secretariat, with the approval of the

Government because the entire subject is highly technical and the Chairperson and the

Directors appointed by the Government in the National Authority will need to be

assisted and aided by the Technical Secretariat. The National Authority created under

the Chemical Weapons Convention Act 2000 enacted by India has the power and the '

function to review the general operation of the CWC. It must not only be able to review

the general operation of the Convention -- that is with respect to all countries and the

overall worldview -- but also, at the same time, the Authority must present an Annual

Report to this House so that the House is alert to the developments on such a major

front. There is no provision whatsoever under the Bill for the National Authority to

submit an Annual Report to the Government which should be laid on the Table of the

27

28

G.M. Banatwala, discussion on the Chemical Weapons Convention Bill, 2000 in the Lok Sabha, 16 August 2000.

Ibid.

260'

House. This omission is a glaring omission and must be removed. Moreover, the

National Authority must also have the function of advising the Government on all

matters relating to the ewe.

An order made under Clause 11 of the Bill, 29 the Government may constitute a

Committee to oversee the functioning of the National Authority. But why should this

order be simply notified in the Gazette but be not required to be laid on the Table of

the House? The National Authority will be constituted under the provisions of the Bill

which individual country (India) may adopt. In addition to this, if the Government wants

to have any other Committee to oversee the National Authority created under the law,

then at least, there must be the courtesy of that order being laid on the Table of this

House. This House will permit the Government to create the National Authority, but

when the Government is constituting an additional Committee to oversee the functioning

of the National Authority, then at least, the Government must have the courtesy of

placing that Order on the Table of the House. This Committee which is appointed to

oversee the functioning of the National Authority must also present its Annual Report

to the Government and that Annual Report to the Government and that Annual Report

should also be laid on the Table of the House. Today, this is a necessity that after the

ratification of the treaty, a law should come into force. Therefore, because of the

necessity, under compulsion, under this pressure, a Bill has come. The implication is

that there should have a role for Parliament, and the Committee to oversee the

functioning of the National Authority and it should work within the democratic

framework and democratic ethos.

Even in the absence of chemical weapons India, has had grave chemical disasters. For

instance, the Bhopal gas tragedy in which many innocent people were killed. The after­

effects of that incident are still affecting the peop,le there .. The almost same disaster

happened in Russia caused by Chernobyl incident which is known to everybody. The

29 See, Clause II, Chapter II of the Chemical Weapons Convention Bill, 2000 which reads as follows: "The Central Government may, if it considers it necessary or expedient so to do for the purposes of this Act, by order, published in the Official Gazette, constitute a Committee by such name as may be specified in the order for the purpose of overseeing the functions of the National Authority and exercising and performing such of the powers and functions of the Central Government under this Act (except the power to make rules U11der Section 56) as may be specified in the order and subject to the supervision and control of the Central Government and provisions of such order, such Committee may exercise the powers or perform the functions so specified in the order as if such Committee had been empowered by this Act to exercise those powers or perform those functions".

261

effects of radiation on the humanity can be seen in Nagasaki even today. Therefore,

India should always be in the forefront of being a party to such treaties and

conventions,. Nuclear weapons have taken the place of chemical weapons now. That

could be one of the reasons why the developed countries have tilted towards signing the

Convention on chemical weapons. 30 Since more sophisticated weapons are kept in store

by the advanced countries they chose to sign this treaty. They do not seem to have done

it on moral ground. India should enter into any pact that seeks to ban the weapons that

can cause mass destruction. Jawaharlal Nehru along with a good number of stalwarts

of Asia, Africa and Latin America had pronounced some policy initiatives which could

have changed the world from what it is today. They were to have a better place to live

in with less tension, with no scope for arms race, which has been built up and being

built up again. 31

There are certain issues involved in inspection as it happens in the case of the atomic

weapons. It is being said that if it attracts something in relation to India's national

security, the Government would not be in a position to allow them. There is a reference

in page 5 and page 7 to toxic chemical elements like phosphorous and sulphur. This

piece of legislation clearly proves that the destruction of chemical weapons is a step

towards non-violence. Even after production, in the chemical factories, shelf life for

certain chemicals exist and they can be used for making chemical weapons. In the case

of chemical weapon war, one thing is certain, that is, the future generation will get

annihilated to the maximum because the after-effects of chemical weaponry is supposed

to be devastating on the society and on the future of the nations which are involved in

this war. Today, chemicals are produced by factories. They might be for medicines or

for research or for agriculture. But they could also be used as weapons during warfare.

Therefore, the legislation should be enacted to form a laboratory, which could assess

the degree of those chemicals which are manufactu"red by different factories. 32 Now,

destruction of chemical weapons is becoming a big problem in the world. Now America

requires 500 billion dollars to destroy its chemical weapon stockpile and Russia requires

.10

.ll

32

Discussion on the Chemical Weapons Convention Bill, 2000, 16 August 2000 in the Lok Sabha by M.V.V.S. Murthi.

Discussion of the Chemical Weapons Convention' Bill, 2000, 16 August 2000, in the Lok Sabha by Rupchand Pal.

Discussion of the Chemical Weapons Convention Bill, 2000, 16 August 2000, in the Lok Sabha by Bikram Keshari Deo.

262

380 billion dollars to destroy its stockpile. The big problem facing America and Russia

today is how to dispose nuclear waste and the chemical waste which will later on be

flooding their armaments.

The Chemical Weapons Convention Bill, 2000 is a historic piece of legislation because

it is to stop production of chemical weapons. And the wide use of chemical weapons

such as mustard gas, sarine, nerve gas in the past reveals the significance of the ban on

the chemical weapons. It is a very important ratification because chemical warfare is

a dastardly and very ugly form of warfare, which has been proved. It is a novel Bill and

the CWC is a novel Convention.33 And the chemical weapons should not fall into the

hands of terrorists.

What had already been at the executive level is now got approved at the legislative level

also. Article 1534 of the CWC is so clear and precise and modification or amendment

to this is so complicated that unless it is approved unanimously by all the parties to the

CWC, it is not possible to bring in any amendment. In fact, one of the functions of the

National Authority inter alia India also are going to include the review of the

Convention itself. And Clause 7(1) (a) says:

"It shall bt: the general duty of the National Authority to fulfil, on behalf of the Government of India, the obligations under the Convention" .35

That itself means that the review of the CWC. It further says in Clause 7(1)(b):

"It shall be incumbent on the National Authority to act as the national focal point for effective liaison with the Organization and other States Parties on matters relating to the Convention" . 36

And Clause 7(2)(a) says:

JJ

34

JS

36

37

"Interact with the organization and other States Parties for the purpose of fulfillin~ the obligations of the Government of India unaer the Convention ' . 37

Discussion of the Chemical Weapons Convention Bill, 2000, 16 August 2000, in the Lok Sabha by V.P. Singh Badnore.

Article XV oflhe 1993 CWC deals with "Amendments". Article XV, para l reads as follows:

"Any State Party may propose amendments to this Convention. Any State Party may also propose changes, as specified in paragraph 4, to.lhe Annexes of this Convention. Proposals for amendments shall be subject to the procedures in paragraphs 2 and 3. Proposals for changes, as specified in paragraph 4, shall be subject to the procedures in paragraph 5".

In reply to the discussion on the Chemical Weapons Convention Bill, 2000, 16 August 2000, in the Lok Sabha by Honourable Minister Suresh Prabhu.

Clause 7(l)(a) of the Chemical Weapons Bill, 2000, and Clause 7(l)(b).

Ibid., Clause 7(2)~.

263

And Clause 7(2)(b) also says specifically: "Monitor compliance with the provisions of

the Convention" itself. This particular clause captures the point that to insert as an

amendment. And a measure is available within the proposed legislation itself". 38

Clause 5 of the Bill reads as follows:

"The Central Government may, by notification in the Official Gazette, declare that this Act shall cease to be in force in case the Government of India withdraws from the Convention in accordance with the provisions of Article XVI. .. "

Now, these are two portions. One is about the notification declaring that this law ceases

to be effective, that is "The Central Governri'lent may, by notification in the Official

Gazette, declare that this Act shall cease to be in force ... "

And the Second is the withdrawal from the Convention. These are the two things. 39

As far as the first part is concerned why should the bill have a provision of this kind

in the law? Suppose the Government has withdrawn from the Convention and the

Government wants that this law should not remain on the Statute Book, they can do it

by issuing an Ordinance. If Parliament is in Sessiop, they can come before Parliament

and get the law passed. Why should this legislative authority be given to the Executive?

Secondly, the Government has very rightly kept the right to withdraw from the

Convention. There would be situations in which it may be required, in the interest of

the sovereignty and the interest of the country, to withdraw from the Convention.

Almost all the countries in the world, which have accorded to the CWC and which have

passed laws of this nature, have this kind of a clause. From the Government as to what

are the circumstances in which the Government would think that this country should

withdraw from the Convention. 40

Why this kind of a provision should be there? Suppose -- withdraw from the Convention

and this law should not be enforced, but it can .do it by issuing an Ordinance if

Parliament is not in session and if Parliament is in session, it is possible before

Parliament and can get this law nullified. Why is this provision? The Legislature is

saying that the Executive has the law-making power and that law-making power includes

38

. \9

Ibid., Clause 7(2)(\1) .

Discussion on the Chemical Weapons Convention Bill, 2000, 16 August 2000, in the Lok Sabha, by Shivraj V. Patil.

Ibid.

making the law and removing the law from the Statute Book.41 First of all, it really

cannot spell out the circumstances in which the Government will be withdrawing from

the Convention. It is only an enabling provision. It is a provision which is there in the

proposed Bill only because, in the event that, in the national interests, the Government

really feels that it should withdraw from this Convention, it should be able to do so.42

At the same time, in case India withdraws from the Convention, what it'ffally means is,

India withdraws from the Convention through a Notification. But even under Article

XVI of the CWC,43 there are certain actions which have already been initiated and

taken and those actions will be protected. And Article XVI, para.3 is clear about the

obligations of the international community. Article XVI para. 3 which reads as:

"The withdrawal of a State Party from this Convention shall not in any way affect the duty of States to continue fulfilling the obligations assumed under any relevant rules of international law, particularly the Geneva Protocol of 1925".

The Clause 5 of the Chemical Weapons Convention Bill, 2000 which deals with "Power

of Central Government to declare Cessation of the Act". It says:

Clause 5: "The Central Government may, by notification in the Official Gazette, declare that this Act shall cease to be in force in case the Government of India withdraws from the Convention in accordance with the provisions of Article XVI, and on such declaration this Act shall cease to be in force, but its expiry under the operation of this Section shall not affect".

As per the Constitution of India, for any Treaty that the Government of India signs, it

requires an authority to sign from the Cabinet. Then, the ratification is also done by the

Cabinet, unlike the system in the United States of America where the Senate has to

actually ratify any Treaty signed by their Government. In India, the Act would remain.

The Ordinance can repeal the Act. The point is -- withdrawing from the Convention can

be done by the Cabinet by a Notification. But what this clause means is that despite

whenever that happens, what is going to be protected are the actions taken under Clause

5(a), (b), (c) and (d), because these are the actions· which have already been initiated.

41

42

43

Ibid.

Discussion on the Chemical Weapons Convention Bill, 2000, 16 August 200, in the Lok Sabha, in reply to Shivraj V. Patil's question by Minister Suresh Prabhu.

Article XVI of the 1993 CWC reads as: Article XVI(!): ''This Convention shall be of unlimited duration". Article XVI(2): "Each State Party shall, in exercising its national sovereignty, have the right to withdraw from the Convention if it decides that extraordinary events, related to the subject-matter of this Convention, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal 90 days in advance to all other States Parties, the Executive Council, the Depositary and the United Nations Security Council. Such notice shall include a statement of the· extraordinary events it regards as having jeopardized its supreme interests".

265

Look at the last part of the Clause 5 of the Chemical Weapons Convention Bill, 2000.

It says:

' ... but its expiry under the operation of this Section shall not affect --

(a)

(b)

(c)

(d)

the previous operation of, or anything duly done or suffered under, this Act or any rule made thereunder or any order made under any such rule, or ...

any right privilege, obligation or liability acquired, accrued or incurred urider this Act or any rule made thereunder or any order made under any such rule, or

any penalty, forfeiture or punishment incurred in respect of any offence under this Act, or ...

any investigation, legal proceeding or remedy in respect of any such right privilege, obligation, liability penalty ,forfeiture c r punishment as aforesaid, and any such investigatiOn, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not expired.

So these actions have already been taken because this Bill is giving effect to the

Convention and when India is withdrawing from the Convention, certain actions could

have been taken under the Act because this Act had already been passed by Parliament.

In the absence of such a provision, what could happen is that India would be

withdrawing from the Convention and then, probably, the actions India have taken for

giving effect to this particular Convention, could have questioned and this is only to

protect that. 44 Finally, the motion was adopted. The debate came to an end - "That the

Bill to give effect to the Convention on the Prohibition of Development, Production,

Stockpiling and User of Chemical Weapons and on their Destruction and to provide for

matters connected therewith or incidental thereto, as passed by Rajya Sabha, be taken

into consideration". And the House took up the Bill clause-by-clause consideration.

India and Declaration of Chemical Weapons

India declared its stockpile of chemical weapons to the Chemical Weapons Convention

in Geneva on 26 June 1997, the deadline for all signatories. to the treaty. 45 New Delhi

Discussion on the Chemical Weapons Convention Bill, 2000, 16 August 2000, in reply to Shivraj Patil's question by Minister Suresh Prabhu. Suresh Prabhu mentioned that the CWC is a precursor. He told Shivraj Patil that he has taken his point in the discussion and that he would consult the lawyers in the Legal Department tor further clarification and relevant aspects put forward by him pertaining to the implementation of chemical weapons Convention.

Under Article III of the CWC each party must declare its chemical weapon stockpile, old and abandoned chemical weapons, and production facilities not later than 30 days after the Convention ente1 s into force for it. Unless the party chooses to make such information public, it remains confidential to the OPCW and available to other parties. Few such announcements were made in 1997. See, Jean Pascal Zandt:rs and John Hart, "Chemical and Biological Weapon Developments and Arms Control" in Stockholm /rzternational

(continued ... )

266

publicly declared that, in keeping· with the stipulations arising from the ratification of

the CWC, India had filed initial declarations on "testing and development of chemical

weapons and their related facilities which were developed only to deal with the situation

arising out of possible use of chemical warfare against India".

Data on the Russian and US stockpiles and programmes have been available for some

time. 46 In an effort to set a precedent of transparency the UK published part of its

detailed declaration to the Organization for the Prohibition of Chemical Weapons

relating to its former offensive Chemical Weapons programme at the end of May

1997.47 On 26 June 1997, India submitted details of what an Indian foreign affairs

spokesman called "its chemical weapons hoards and production facilities" to the

OPCW. 4x The details were not made public, although a New Delhi-based military

analyst suggested that the Indian army had no access to the Chemical Weapons

Stockpiles, which remain at a laboratory of the Defence Research and Development

Organization (DRDO) which produced the weapons. 49 The OPCW inspected a DRDO

chemical weapon facility at Gwalior in July and a laboratory at Ozra in August 1997.50

But India requested that this information be excluded from the OPCW inspection report

to the first Conference of the States Parties. 51 In its required declarations under the

45( ... continued)

"'

47

48

'')

50

51

Peace Research Institute (SIPRI) Yearbook I998 --World Armaments and Disarmament (Oxford: Oxford University Press, 1998), pp.456-590.

See Zanders. J.P .. Eckstein, S .• and Hart, J., "Chemical and Biological Weapon Developments and Arms Control", Stockholm InternationaL Peace Research Institute (SIPRJ) Yearbook I997: Armaments, Disarmament and InternationaL Security (Oxford: Oxford University Press, 1997), pp.445-51.

United Kingdom of Great Britain and Northern Ireland, Declaration of past activities relating to its former offensive chemical weapons programme, via British Embassy, Stockholm, May 1997. Some 40 pages (of 238 pp.) were blanked out for national security reasons.

"India calls on Pakistan to reveal chemical weapons arsenals", Agence-France-Pressevia Nando.net, 26 June 1997, URL < http://pele.nando.net/newsroom/ntn/world/062697/world 16-25025.html >, version current on 26 June 1997; and "India opens its chemical weapons.for scrutin_y", Times of India (New Delhi), 27 June 1997. Fo•· years India had formally denied the existence of a chemical weapons (CW) armame:ll programme. The declaration therefore caused a controversy about the trustworthiness of India in disarmament and non-proliferation questions. See Dixit, A., "India must reclaim position as leader in nonproliferation", Defense News, vol.l8, no.32 (11-17 August 1997), p.15; and Kremmer, C., "Teri Years Later, Indians come clean", Sydney Morning Herald, 28 June 1997, URL <http://www.smh.com.au> version current on 22 July 1997.

See, Kremmer, C., ibid.

Bedi. R .. "Indi:~n chemical bases come under scrutiny", Jane's Defence Weekly, vol.28, no.6 (13 August 1997), p.5.

See Zanders, J.P., Eckstein, S., and Hart, J., "Chemical and Biological Weapon Developments and Arms Control", Stockholm International Peace Research Institute (SIPRJ) Yearbook 1997: Armaments, Disarmament and International Security (Oxford: Oxford University Press, 1997), particularly p.461.

267

ewe, India acknowledged the existence of a chemical warfare program-- and disclosed

the details of its stockpiles and the availability of manufacturing facilities on a very

small scale. New Delhi has pledged that all facilities related to its chemical weapons

program would be open for inspection. 52 The declaration kept India's chemical

armoury under wraps, since the ewe Secretariat maintains the confidentiality of the

declaration.

India declared that it would not ban the manufacture and trade of thionylchloride in the

absence of a ewe and emphasized the peaceful use~ of thionylchloride. 53 Discussions

were said to be going on between India and the Australia Group about Indian

restrictions on sales of chemicals and the technology needed for poison gas

production. 54 The Australia Group is comprised of 21 countries which, at the initi(\tive

of Australia, meet twice a year to discuss which chemicals ought to be subject to

various national regulatory measures and ought, accordingly, to be put on a "warning

list" in order that these chemicals not be used to produce chemical weapons agents. The

Australia Group is the main mechanism for the export control. The cornerstone of any

multilateral treaty establishing an international control regime is transparency: 55 All

States Parties must openly demonstrate compliance in order for a State to be wiling to

submit itself to the regime. Treaties that encompass confidence-building measures -­

whereby compliance can be measured and assessed -- necessarily mean giving access

to information that might otherwise never be widely shared with other States.

International inspections are intrusive. 56 Declarations containing national information,

submitted by States Parties to an international body which will process and analyze it

53

S4

ss

The published literature detailing India's chemical weapons capabilities is extremely sparse. According to one published report, India's stockpile of chemical weapons consists of mustard gas shells left by the British of World War II vintage. These shells, fired from a 25 pounder gun, are said to be in storage and not under the operational control of the Indian Army. India is" also reporied to have manufacturing facilities for production of agents in small quantities. See < http://fas.org/nuke/guide/india > at <http://www .fas.org >, Federation of American Scientists (FAS), accessed on 12 February 2004.

See Engelberg, S., and Gordon, M.R., "India seen as key on chemical arms", New York Times, 10 July 1989, pp.A1, A6; Reuters. "India.rejects ban on arms chemical",lnternational Herald Tribune, 12 July 1989.

Tran, M., "India asked to limit export of poison gas chemicals", International Herald Tribune, 14 July 1989, p.5.

For a wide-ranging discussion, see Rodrigo Yepes- Enriquez Lisa Tabassi, (eds.), Treaty Enforcement and International Cooperation in Criminal matters -- with Special Reference to the Chemical Weapons Convention (The Hague: Organization for the Prohibition of the Chemical Weapons, 2002), pp.145-159.

Ibid., p.l45.

268

and share the analysis with other States Parties, expose that information to unauthorized

disclosure. The treaty will necessarily embody measures to protect that information. All

players involved must be committed to that protection: the national civil servants who

gather and process the national information into declarations, the inspectors and other

international civil servants who receive and analyze the national declarations, and

officials of other States Parties who receive classified information on other States

Parties' compliance. In other words, there is a need to have an effective confidentiality

regime to coexist with and complement the intrusive verification system -- to balance

transparency and confidentiality. India's official explanation was that:

"Our declarations have been complete and in keeping with our commitment to the CWC. We are an original signatory and original State Party. Many other countries that had declared their intention to be an origmal State Party held back their ratification. Our approach was to lead through example and it is encouraging that Pakistan lias followed us. We can only hope that Pakistan's declaration is made with the same degree of commitment as it reflected in the Indian declaration". 57

Understandably, India's admission to processing chemical weapons and its production

facilities in 1997, five years after the Joint Declaration with Pakistan on the Complete

Prohibition of Chemical Weapons, led to alarm and derision in Pakistan. The Pakistani

Foreign Office spokesman declared: "This revelation arises serious questions about [the]

sincerity of India's commitment solemnly undertaken in its bilateral agreerr.ent with

Pakistan and the international Conventions" . 58 India might and that it also raised

doubts globally, about India's commitment to the non-proliferation goal. 59

On 31 October 1997, the OPCW completed its draft report on the implementation of

the Convention for the Second Conference of the States Parties. 60 One hundred states

were then parties to the CWC: 68 of the these States had submitted the required initial

declarations and 32 had not. Sixty-five states made declarations under Article III, 61

58

59

61

Statement by Ms. Savitri Kunadi, Ambassador/Permanent Representative of India to the United Nations Offices in Geneva at the Conference on Disarmament (CD), 19 March 1998.

"Pakistan's Concern", The Hindu (New Delhi), 22 August 1997.

P.R. Chari and-Giri Deshingkar, n.10, p.249.

Organization for the Prohibition of Chemical Weapons, Draft report of the Organization on the implementation vf the Convention, OPCW document C-11/2, 31 October 1997.

Article III of the 1993 CWC which deals with "declarations" with respect to Chemical Weapons, Old Chemical Weapons, Abandoned Chemical Weapons, Chemical Weapons Production Facilities and Other Facilities.

269

five states under Article V62 on chemical weapons production facilities, 63 and 56

States under Article VI64 on non-prohibited activities. Inferences, which cannot be

confirmed, can be drawn about chemical weapons programmes after World War II from

the initial inspections conducted under Article V (i.e., the first visit to declared

production facility). Inspectors visited two such installations in China, six in France,

one in Japan, eight in the UK and nine in the USA. India and South Korea both

requested that information regarding inspections on their territories be excluded from

the OPCW inspections report to the First Conference of the States Parties. However,

four initial Article V inspections were conducted at three different times in unnamed

States, so it may be presumed that both countries had chemical weapons production

facilities.· This tentative picture is of necessity incomplete because many parties did not

submit declaration within 30 days of the entry into force of the ewe for them or were

not yet required to do so at the time the OPCW draft report was completed because of

the date of their accession. In addition, the publicly available information does not

reveal when the Chemical Weapons programmes were active or terminated. As the

OPCW is bound to its confidentiality obligation and in view of persistent allegations of

Chemical Weapons proliferation, confidence in the emerging CWC regime would be

greatly strengthened if individual parties were more forthcoming with public information

on relevant past activities. For at least two parties, France and India, the limited

publicly available data appear to be or are at odds with past formal statements on the

non-possession of Chemical Weapons or chemical weapons-related programmes. 65

What does it mean if a country says that it does not stockpile chemical weapons but

does not state whether chemical weapons of an ally may be stockpiled on its territory?

What does it mean if a country says that it opposes the possession, production,

stockpiling and use of chemical weapons but does not reveal whether or not it possesses

6.1

6S

Article V of the 1993 CWC which deals with "Chemical Weapons Produc .ion Facilities".

The 5 countries were China, France, Japan, the UK and the USA. India and South Korea requested that the information pertaining to their declarations not be included in OPCW document C-II/2, 31 October 1997.

Article VI of the 1993 CWC stipulates on "Activities Not Prohibited under this Convention:·

On the basis of the press reports regarding India mentioned above, it would appear that South Korea declared 1 facility.

In October 1997 it was revealed, e.g., that France had conducted CW tests in Algeria untill978, 16 years after Algeria's independence. See Jauvert, V., "Quand Ia France testait des armes chimiques en Algerie" (When France tested chemi~.:al weapons in Algeria]. Le Nouvel Observateur, 23-29 October 1997, pp.l 0-22.

270

them? If a country has old stockpiles of chemical weapons from the two world wars,

which are presumably obsolete and unusable, might they not usefully be declared as

such? Ambiguities of the kind implied by these questions could be avoided when a

country makes a voluntary declaration. It is possible that greater clarification of the

declarations made would serve a confidence-building purpose for the negotiations on a

CWC. Clean declarations of chemical weapons possession or non-possession would also

affect the discussion in the ewe negotiations about the appropriate size of the future

inspectorate for the first ten years after ratification of a ewe, when destruction of all

chemical weapons is to take place. A larger number of chemical weapons stockpiles

would obviously require a larger inspectorate. 66

Despite several inter-ministerial consultations, the Defence Research and Development

Organization (DRDO) did not inform other agencies about its chemical weapons

program, nor was it specifically consulted before the Ministry of External Affairs

committed India to the Joint Declaration with Pakistan in 1992 or when India joined and

ratified the ewe in 1996. Why the DRDO did not destroy its stocks of Chemical

Weapons at any stage before India ratified the CWC in 1996 remains a mystery. 67 The

DRDO participates in India's Nuclear, Biological and Chemical (NBC) warfare.

Research on chemical weapons has continued in various establislunents of the military

and DRDO research labs. In addition, work is carried out by DRDO to design and

fabricate protective clothing and equipment for troops on the battlefield in case of a

chemical weapons attack. The Defence Research and Development Establishment

(DRDE) at Gwalior is the primary establishment for studies in toxicology and

biochemical pharmacology and development of antibodies against several bacterial and

viral agents. In addition, research is carried out on antibodies against chemical agent

poisoning and heavy metal toxicology. Chemical agents such as Sarin and nerve gas are

produced in small quantities to test on protective equipment. Protective clothing and

equipment are designed and manufactured amongst other places at the Defence Materials

and Stores Research and Development Establishment at Kanpur. India has developed

five types of protective systems and equipment for its troops as a safeguard against

66

67

See S.L. Lundin, "Chemical and Biological Warfare: developments in 1989" in Stockholm International Peace Research Institute (SIPRI) Yearbook 1990: World Armaments and Disarmament (Oxford: Oxford University Press, 1990), pp.l12-l3.

P.R. Chari ami Giri Deshingkar, n.lO, p.248.

271·

nuclear, biological and chemical (NBC) hazards. 68 The development of all five types

of protective systems and equipment has been completed and their induction into the

service has been formally approved. The five types of protective systems and equipment

are: NBC collective protection system, NBC individual protective equipment, NBC

medical protection equipment, NBC detection equipment and the NBC decontamination

system.

India derived some satisfaction from the knowledge that its confession of a chemical

weapons program was much appreciated by the international community. The OPCW

Director-General Jose Bustani held out as an example worthy of emulation by other

countries. 69 When judging India's conduct, remember that in addition to the United

States, Russia and Iraq, which had publicly admitted to possessing chemical weapons,

six other countries including China, India and South Korea also declared that they had

chemical weapons and possessed production facilities. 70 Indeed, the US was in

violation of the ewe after ratifying it, as it had not promulgated guidelines for the us chemical industries to comply with the Convention's data declarations and

inspections. 71 India has delivered many chemicals which can be used for chemical

weapons production. 72 The general lesson from this episode is the need for complete

transparency to allow for discovery of past infractions of the provisions of the ewe and

for establishing national organi~ations to oversee future compliance. Effective

verification and implementation procedures are essential for ensuring the regime's

credibility.

Two further aspects of the CWC's implementation processes ma:y influence India's

approaches to the Biological and Toxin Weapons /Convention Protocol. First, India has

noted that "national implementing legislation containing provisions which undermine the

68

6'J

70

71

n

See <http://www.fas.org/nuke/guide/indialbw/> at Federation of American Scientists (FAS) website <http://www.fas.lorg/> accessed on 12 February 2004.

"India can keep its Chemical Weapons". The Pioneer (New Delhi), 18 August 1997.

The CBW Chronicle, The Henry L. Stinson Center, vol.2, no.4 (May 1998), p.7.

The CBW Ct.rvnicle, The Henry L. Stimon Center, vo1.2, no.3, p.l2.

See Clad, J .. "Indian Shipments to Iraq Underlie its Diplomatic Ambivalence: Chemical Reaction", Far Eastern Economic Review, 6 September 1990, pp.l0-11. See also, S.J. Lundin and Thomas Stock, "Chemical and Biological Warfare and Arms Control Developments in 1991" ,Stockholm International Peace Research Institute (SIPRI) Yearbook 1992: World Armaments and Disarmament (Oxford: Oxford University Press, 1992), p.89~

272

Convention hold out the prospect of leading to matching response..; by other State Parties

thereby leading to an unnecessary dilution to [s'ic] the spirit of confidence reposed in the

CWC by a majority of countries party to the CWC" .73 This circumlocutory language

expresses India's concern over the approach taken in US legislation to implement the

CWC. That legislation ensured limits to the number of annual inspections required

testing of US samples only in the US and empowered the US President to block

inspections for national security reasons. 74 Secondly, India has noted that "the

existence of technology denial regimes such as the Australia Group (AG) remains an

aberration when seen against the large number of ratification the Convention has

enjoyed so far" .75 The Australia group, as mentioned earlier, comprising some thirty

developed nations, constitutes a self-appointed body to control the transfers of

precursors to chemical weapons and equipment for producing Chemical and Biological

Weapons (CBW) agents. Their "washing list" of chemical differs from and expands

upon the list of "scheduled chemicals" in the ewe and hence it export-control system

supercedes the CWC requirements. The continuance of the AG after the CWC passage

has been justified on the grounds that it provides its members with a joint forum to

coordinate their export control policies and check Chemical and Biological Weapons

proliferation. It is further claimed that the two regimes (CWC and AG) are mutually

reinforcing. 76 .And the AG "signal(s) to a potential proliferator that it will not be able

to play off one Australia Group member against another" .77 Moreover, India sees the

AG as both ineffective, for the reasons indicated previously, and unjustified in its

application to members of the ewe in good standing.

The Chemical Weapons Convention was opened for signature in Paris on 13 January

1993. By the conclusion of the signing ceremony on 15 January, 130 states had signed

73

74

75

76

77

See Annual Reporr I998-99, Ministry of External Affairs, Government of India, New Delhi, p.76.

See New York Times, 23 May 1998. A summary of the US Senate Resolution on Ratification eu1bodying these reservations can be found in Arms Control Today, vol.27, no.2, April 1997.

Policy Statements, "India and Disarmament", Embassy of India, Washington, D.C., online < www .indianembassy .org/policy/Disarmament/noteindiadisarmament.htm >.

This argument, and others to support this conclusion, are made in Amy E. Smithson, Separating Fact From Fiction: The Australia Group and the Chemical Weapons Convention, The Henry L. Stimson Center, Occasional Paper No.34, March 1997, pp.v-vii. ..

For a detailed discussion, see Ian Anthony and Jean Pascal Zanders, "Multilateral Security-related Export Controls" in Stockholm International Peace Research Institute (SIPRI) Yearbook 1998: Armaments, Disarmament and International Security (Oxford: Oxford University Press, 1998), p.388.

273

the Convention and had adopted by acclamation the Paris Resolution that formally

established the Preparatory Commission for the Organization for the Prohibition of

Chemical Weapons (OPCW) in The Hague. 78 In so doing, the signatory states· opened

up a new phase in the history of chemical disarmament. Some 20 years of multila'(eral

negotiations in Geneva having been brought successfully to a close the previous autumn,

the signatory states of the Convention now set about a no less formidable task: to

establish within a compressed time frame an effective international organization -- the

OPCW -- to oversee the implementation of the CWC. Fourteen months later the number

of signatories -- and thus the number of member states of the Preparatory Commission -

- has reached 157. Four of those states have also ratified the Convention. Such an

unprecedented degree of support for a multilateral arms control instrument is eloquent

testimony not only to the political will of the international community to bring about the

elimination of Chemical Weapons (CW) but also to the quality and balanced nature of

the text of the Convention, which has been universally recognized as an effective

instrument for enhancing national and global security. 79 The CWC will enter into force

180 days after the deposit of the 65th instrument of ratification, but no earlier than two

years after it was opened for signature, that is, no earlier 13 January 1995. This

minimum period of two years between opening for signature and entry into force (ElF)

reflects the realization of the Convention's authors that, with its unprecedented scope

and detail, a great deal of practical work remained to be done before the Convention

could be implemented with maxin1um effectiveness. Once a decision has been agreed,

78

79

Article VIII of the CWC stipulates "The Organization".

1. The States Parties to this Convention hereby establish the Organization for the Prohibition of Chemical Weapons to achieve the object and purpose of this Convention, to ensure the implementation of its provisions, including those for international verification of compliance with it, and to provide a forum for consultation·and cooperation among State Parties.

2. All States Parties to this Convention shall be members of the Organization. A State Party shall not be deprived of its membership in the Organization.

3. The seat of the Headquarters of the Organization shall be The Hague, Kingdom of the Netherlands.

4. These are hereby established as the organs of the Organization: fhe Conference of the States Parties, The Executive Council, and The Technical Secretariat.

If one looks back at the negotiation of treaties during the Co;d War, it seems obvious in retrospect that those who extolled or decried the implications of specific treaties often failed to foresee the ways in which the treaty would interact with other international factors to change the way people think about and negotiate questions of international security. For more details, see John Gee, "The OPCW's Verification Capability: A Review of Progress" in Brad Roberts (ed.), Ratifying, the Chemical Weapons Convention (Washington, D.C. : The Center for Strategic and International Studies, 1994), p.60.

274

implementation becomes crucial if a hard-fought policy battle is ever to reach its

objectives. The dichotomy that may have existed at one time between decision-makers

and implementers does not exist in today's world. The two roles are intertwined by

necessity: the decision-maker needs to ensure that a policy is not only decided upon, but

also is accurately implemented. Once again the forces of personality, leadership and

management, organizational structure and procedures, and bureaucratic politic~ come

into play. Faithful implementation may be hindered by uncertainty about what was

agreed to, a lack of resources, or the resistance of bureaucrats or even senior leaders

to do what they were ordered to do. If such problems are not addressed, the original

decision may never be implemented or may be delayed until it is altered or reversed.

The OPCW has been established to implement the CWC, the first ever universal, non­

discriminatory and truly verifiable treaty to eliminate completely an entire category of

weapons of mass destruction, and to prevent their recurrence. No other international

disarmament agreement has attracted such a wide level of support so early in its life. 80

While looking to the organizational approach, the diplomacy dimension cannot be

overlooked. Both are equally important to achieve the goals. As far as the CWC, the

international community has a relatively new institution with a strong verification

capability. The second dimension, i.e., diplomacy81 which is proceeding in parallel

with the first -- is to complete work on a number of detailed tasks left over from the ..

Geneva negotiations and specifically assigned to the Preparatory Commission by the

negotiators, such as the development of operational requirements and procedures for the

conduct of inspections. The successful completion of both task is, naturally a sine qua

non for the effective implementation of the ewe, and both tasks are addressed in the

Paris Resolution. The third task effective national implementation by states parties that

should not be belittled, which consists of a entire range of diplomatic implications.

RO

81

For a detailed and more comprehensive, in-depth studies of the CWC verification regime and the practical work of OPCW, see Walter Krutzsch and Ralf Trapp (ed.), Verification Practice Under the Chemical Weapons Convemion: A Commellfary (The Hague: Kluwer Law International, 1999), pp.S-11.

Diplomacy reduces international danger. In most of the times, any peacemaking efforts of diplomatic negotiators may result in the positive outcome. For more details, see Charles W. Kegley, Jr., and Eugene R. Wittkopf (ed.), wo~acL.:~ilid- T-te.."\cl a~ .,....,.a,.,.~tO'Iw.t,.t.;o"'. (Ne."" 'io ....... : ~\:.. M~"T~i"''~, ''S'J), i'1?. ~z.c- "\.

275

There seems to be consensus in the Ad Hoc Committee on Chemical Weapons that the

OPCW would consist of three institutions. 82 The principal body is the Conference of

the States Parties (CSP) where all parties to the CWC are represented. The second and

main subsidiary institution is the Executive Council (EC), a body of limited

membership. The third institution is the Technical Secretariat (TS). Such a formula has

been applied to many international organizations. However, one should be well aware

of the fact that the models used for other international organizations can only be of

limited value with regard to the Organization to be established under the Chemical

Weapons Convention. 83 The substance of the future Convention is entirely different

from what is being dealt with by existing regimes.

Pertaining to verification capability, the Paris Resolution has specifically directed the

Commission to "establish a provisional Technical Secretariat to assist the Commission

in its activity and to exercise such functions _as the Commission may determine, and

appoint the necessary staff in charge of the preparatory work concerning the main

activities to be carried out by the Technical Secretariat to be established by the

Convention". 84 The resolution mandated that the Commission, among other things,

undertake the "recruitment and training of technical personnel and support staff" and

carry out the "purchase and standardization of equipment".

Structure of OPCW

The idea of a subsidiary body to the principal institution Conference of the States

Parties (CSP) under the CWC emerged in the Ad Hoc Working Group on Chemical

Weapons (now Ad Hoc Committee on CW) during the period 1980-1983. Most

international organizations as a matter of fact include a body of limited membership

which meets more frequently than the principal body and executes its decisions, and

assumes special functions as well. Examples are th~ Security Council of the United

Nations, the Board of Governors of the International Atomic Energy Agency (IAEA),

82

83

84

See, text of the CWC, Article VIII I (Organization), VIII.20 (Conference), VIII 31 (Executive Council), and VIII 37 (Technical Secretariat).

For a detailed critical and informed discussion, see Thomas Bernauer, The Future Chemical ·weapons Convention and its Organization: The Executive Council (New York: United Nations, May 1989), pp.I-?5.

See, John Gee, n:79, p.61.

276

the Governing Body of the International Labour Organization (IL0),85 or the UN

Convention on the Law of the Sea which provides for a "Council" in the framework of

the International Sea-Bed Authority. 86 The purpose of such institutions is twofold:

(a)

(b)

They should facilitate rapid and continuous action (convening of members, decision-making etc.) while representing the authority of all members of the regime.

There is the idea of giving a preferential status to certain Parties which have a "specific interest" m the regime and are of great importance for its functioning. ·

This involves three fundamental problems:87

85

86

87

(a)

(b)

(c)

The composition, powers of the Executive Council, and its rules of decision-making are closely interrelated. The more important the anticipated powers of the Executive Council under the regime, the more difficult will be the question of composition and decision-making. If, for example, matters of outstanding Importance will be decided by the Executive Council, and at the same time its composition lacks factual (as different from legal) authority due to unbalanced representation (political, geographical, special interests etc.), the regime might be weakened or might even collapse. Furthermore, it would be difficult to take an important decision against the will of a Party which is very significant unaer the CWC regime if this State was not represented in the Executive Council, or if the decision was adopted against its will. Hence, in the context of this interrelation of powers, composition and rules of decision­making, three variables can fie manipulated in order to find a balance and therefore agreement on the Executive Council:

i. The specificity and importance of functions assigned to the EC can be varied. -

ii. The size of the EC and its composition (according to specific criteria) can be varied.

m. Rules of decision-making can be varied (consensus, simple or qualified majority and further qualifications).

One could argue that the principle of sovereign equality of States should be the determming criterion for the compositiOn of the EC. On the other hand, its limited membership, based on functional requirements and preferential status for certain Parties, will certainly become a fact one cannot ignore. Under such circumstances, criteria to determine members and non-members of the EC will have to be established. These criteria must: (i) Ensure the cooperation under the CWC regime of a Party which is a non-member of the EC. (ii) Ensure representation of all relevant interests in order to guarantee the stability of the regime (Sovereign equality versus representation of spec_ial interf!sts).

An extreme position would be that the principle of sovereign equality requires the consensus of all. EC members for all decisiOns. This,

Further examples are the Governing Council of United Nations Environment Programme (UNEP), the Executive Board of UNICEF, the Industrial Development Board of UNIDO, the Administrative Council of ITU, or the Board of Governors of INTELSAT.

The International Sea-Bed Authority consists of an • Assembly", a "Council" of limited membership (36), a "Secretariat" and the "Enterprise". See also, Robert 0. Keohane and Josep Nye, S., Power and Independence (Boston: Little Brown, 1977).

Thomas Bernauer, The Projected Chemical Weapon Convention: A Guide to the Negotiations in the Conference en Disarmament (New York: United Nations, 1990), p.ll.

277

however, stands contrary to functional requirements of rapidity of convening and action which would, for example, be served best by simp!e majority. where is the equilibrium in this tension?

Each of the three "variables" mentioned under (a) and will try to assess the impact of

possible constellations by discussing the proposals advanced so far and by exploring

additional ideas. The following diagram summarizes the relationship briefly

explained. 88

Specificity of assigned functions

I Importance of assigned functions

L

Size of the EC

Composition of the EC

rules of J ~decision-making ·

The model clearly shows that agreement on any component included cannot be reached

in isolation. The question of striking a balance between the five issues is extremely

difficult because there is no agreement on any of them. We have no "constant factor"

in the "equation" which would facilitate a solution. Final agreement cannot be reached

on the composition and rules of decision-making if the powers of the EC are unknown.

On the other hand, agreement on the functions and powers of the EC will not

automatically lead to agreement on the composition and rules of decision-making.

What is, however, important for · is the fact that there can be a preliminary estimation

of the powers and functions that might be assigned to the EC. We can assume that:

(a)

(b)

(c)

There will be a definition of the functions of the EC in the CWC. Most of them are already written down in the rolling text.

The powers and functions assigned to the EC will be important.

It is likely that the more important the powers of the EC in real terms, the less specified they will be in advance. Less specifi~ provisions on functions may allow a large measure of self-determination.

An assessment of the powers of the EC is necessary in order to show that a preliminary

agreement on the composition of the EC and its rules of decision-making is not

88 Ibid., p.4.

278

necessarily excluded at this stage of negotiations. The delegations do more or less know

what is on stake and could therefore develop their negotiating positions according to

their interest. This holds even more since the basic principles and objectives of the EC

seem to be acceptable to most delegations. However, international community shall also

discuss alternative scenarios for the possible outcome of negotiations on these issues. 89

Pertaining to the size of the EC, it should be around 20-30. The memb~rs should all be

elected by the Conference of the States Parties. The candidates should be appointed by

their regions. A compromise on the number of regions and their delimitation as well as

the distribution of seats to these regions remains to be found. There are enough

precedents to establish such definitions. These do not need to be included in the

Convention itself. A special provision applying to cases in which no agreement on the

nomination of a candidate was reached should be considered. There should be an

informal understanding that the permanent members of the UN Security Council, the

declared possessors of chemical weapons as well as the countries with the largest

industrial chemical base should be represented in the EC. This understandings as well

as details on appointing procedures, and specific criterion for composition could be

expressed in a UN resolution or another declaration. This would result in an informal

and semi-permanent membership of certain Parties. The possibility of re-election of

members of the EC is therefore necessary. In any case, criteria such as political balance

or largest industrial chemical base should be hidden in the provisions. There is. already

a good measure of consensus that the composition should be based on a regional. and

political balance since the composition must take into account the interests both of States

Parties whose security arrangements are affected and of those who will be largely

affected by the verification activities. 90 Further negotiations can build upon this

understanding.

With respect to the decision-making processes in the EC, it should be taken by

consensus. If consensus cannot be reached after 24 hours, decisions on matters of

substance should be taken by two-thirds majority of those present and voting. Decisions

on procedural matters should be taken by simple majority of those present and voting

89

90

Ibid., p.5.

See, for example, CD/PV.460 (Brazil), PV.553 (China), PV.449 (France), PV.46l (Pakistan), PV.481 (Sweden), PV .457 (USA), Statement by the Permanent Representative of the GDR in the Plenary of the CD on 16 March 1989.

279

and should not be subjected to the time-lag of 24 hours. Matters of substance and

procedure should be listed. If there was disagreement on whether a matter is substantial

or procedural, a simple majority of those present and voting may put the issue· in the

substantial category. The possibility of disqualifying from the vote a Party concerned,

for example with regard to. a request for on-site inspection on challenge, is worth

considering. A consensus on such principles is obviously difficult to find at this stage

of negotiations. The inter-relationship of powers of the EC and its composition and

decision-making is of particular importance. In this context, there are positions and

trends which will influence the outcome of negotiations on these issues. The position

that questions of on-site inspection of challenge, 91 which are viewed as key i.;sues of

national security, should be bilateral in their essence could lead to a reductio a of the

powers of the EC. This position, explicitly expressed by the United States, points to the

basic view of Western and Socialist Countries that such issues should not entirely be

decided by the EC but should contain a strong bilateral element. The reasons for this

view cannot be ignored. If the EC had powers similar to those of a court, the whole

regime could be weakened. There would be a considerable risk of important Parties

withdrawing in conflict situations, for example if, in the context of an on-site inspection

on challenge following an alleged violation of the Convention, the information obtained

by a country by national technical means indicated a clear violation of the Convention

while the EC decided that no violation had taken place. India became the first Chair of

the Executive Council of the Organization of the Prohibition of Chemical Weapons in

May 1997 and was elected to the EC for two consecutive two-year terms.

Achieving agreement on the procedures and decision-making for on-site inspections

(OS!) became one of the. most difficult issue to resolve. 92 As the most intrusive

component of the verification regime, at the interface between national security and the

variability of the treaty, OSI are historically one of the mosi sensitive issues and have

contributed to failures in the past. All sets of negotiations relating to the WMD issues

91

9l

Unlike previous multilateral arms control agreements the Chemical Weapons Convention contains a tangible description of its inspection and .enforcement practices. Much like the difficulties involved in their negotiation, the nature of routine and challenge inspections continue to be a point of contention. For a detailed discussion, see Stephen Black, "Illuminating the Shadows: On-site Inspections and the Chemical Weapons Convention" in Benoit Morel and Kyle Olson (ed.), ~~QW~.-~~ S~Agl>~~"'"'~: Tl.e. C..\..&.w\ic..S\.l vJc.a."o"'~ c..o .. .,. e.nt\OVI t~ou.lcAU': wu~ ..,; e.., P.,es..!>, 1 '9 .J). p ,., . 'C) .!o -1.1 ~.

For the protection of interests related to on-site inspections, see, Rebecca Johnson, "Nuclear Arms Control through Multilateral Negotiations" in Nancy W. Gallagher (ed.), ~\),~ :C.tw.t.-k.¥.itl:!~,t:'<'~ ol"!>f-{lrtOGIU..t..s ~- "J~~..-,-~ ~cA i='ol;t.~ lL..o ........ o..,: H"'-"'\o. c.a.s.~, 199!>), rp. 3·\1·~.

zso··

have been considered the various kinds of phenomena that might provide evidence of

a clandestine WMD programmes, without really addressing the two central political . questions which involve diplomacy: What kind of evidence would be admissible in

supporting an OSI request; and what level of decision-making would be required before

an inspection went ahead.93 Moreover, diplomacy takes the centre stage. With regard

to the first question, the United States, supported by Britain and France, argued that any

kind of relevant information should be permissible. These countries also argued that the

Technical Secretariat of the Vienna-based CTBT Organization (CTBTO) should be able

to proceed automatically with an inspection unless countermanded by a majority

decision of the Executive Council (the so-called 'red light' process). Russia supported

incorporation of national technical means (NTM) as a cost effective supplement to the

international monitoring system (IMS) but ruled out human intelligence or espionage.

Russia, also maintained that the Executive Council should be required to give majority

approval before an OSI request could proceed (the 'green light'). Israel's position was

similar to Russia's, also backing Moscow's attempts to restrict access to buildings or

facilities not directly connected with a suspected nuclear test, allowing the inspected

state to deny or provide strictly 'managed access' during an OSI. China, India and

Pakistan went even further to restrict inspections. With some nuanced differences among

them, their initial position was for NTM to be ruled out and for the Executive Council

to approve an inspection by a two-thirds or three-quarters majority. 94 Towards the

endgame, they indicated acceptance of some NTM information, especially 'IMS-type

data' and satellites, but under strict control and only if corroborated by the IMS. It is

likely that neither of the extreme positions (voting on all aspects of compliance, no

voting on compliance) will prevail. A consensus might be found somewhere in the

middle. 95 It might result in a provision saying that the EC shall vote on some (defined)

aspects of compliance and "consider" the others and make recommendations.

As far as the CWC is concerned, the another problem is a certain tendency to transfer

some of the powers from the Executive Council to the Technical Secretariat or the

Conference of the States Parties. One should therefore consider the following two

9.\

95

Ibid .• p.lOO.

Ibid., pp.l00-01.

See, Thomas Bernauer, n.87, p.24.

281

scenarios with regard to ongoing negotiations: 96 (i) The composition of and decision­

making in the EC might only be solved together with other "hardcore" issues in a last

minute package deal; (ii) Hot issues such as voting on compliance or on the report of

a fact-finding mission could be excluded from the powers of the EC, or its role in this

context could perhaps be modified in a sense that it would only consider such issues and

make recommendations. As a consequence, agreement on the composition of and

decision-making in the EC might be easier to reach. However, it is very unlikely that

the issue of compliance will be completely excluded from the competence of the

Executive Council. In any case, further study should concentrate on the question of

which composition or rules of decision-making would be acceptable to wi.'tich

delegations on the basis of which powers of the Executive Council. To make the

positions more explicit, each delegation could (behind closed doors) suggest its

preferred composition, indicating precise numbers, criteria, and countries or groups of

countries.

India and the OPCW

India, an early signatory of the CWC, hurriedly ratified the Convention on 3 September

1996, taking a place as Chair on the CWC's Executive Council97 On 26 June 1997,

the last day allowed by the CWC provisions for such declarations, India announced that

it had a hitherto secret chemical weapons stockpile as well as production facilities and

declared that it would eliminate them. 98 Although previously not known to be

producing chemical weapons, India's well-developed chemical industry was known to

have produced and exported certain precursors necessary for chemical weapons agents

to countries of concern. 99 An Indian firm has been accused of assisting Iran's chemical

weapons program. 100 India is also a party to the Biological Weapons Convention

(B 'NC) and is assessed by the Pentagon to have the technical capability to develop

96

97

98

99

100

See, Thomas Bernauer, n.87, p.24~

"India's Ratification of Chemical Weapons Convention", Deccan Herald, 30 June 1997.

"India Sets an Example", International Herald Tribune, 7 August 1997; "India Declares Chemical Weapons", The Hindu, 21 June 1997; Proliferation: Threat and Response, November 1997, Office of the Secretary of Defense, p.17.

Office of the Secretary of Defense, Proliferation: Threat and Response, April 1996, p.38.

See Con Coughlin, "Iran Secures Aid to Make Poison Gas in Deal with India", London Sunday Telegraph, 23 June 1996. See also, Rodney W. Jones, Mark G. McDonough, et. al., (ed.), Tracking Nuclear Proliferation: A Guide in Maps and Charts, 1998 (Washington, D.C. : Carnegie Endowment for International Peace •. 1998), p.l18.

282

offensive biological warfare agents -- although, in the case of biological weapons, India

is believed to have worked on defensive measures only. 101

On 29 April2000, the Organization for the Prohibition of Chemical Weapons (OPCW)

completed the third year of its existence. As any Original State Party to the CWC, India

has been discharging the various obligations assumed by it. It has taken effective

measures to meet all the targets and timelines envisaged in the Convention. 102 Since

the entry into force of this Convention, the Technical Secretariat of the OPCW has

conducted more than 700 inspections at chemical weapons storage facilities, former

production facilities and industrial plant sites in States Parties to the Convention. More

than 40 such inspections have been smoothly conducted in India. India has been playing

an active role in deliberations of the Executive Council to oversee the non­

discriminatory implementation by State Parties of all obligations assumed under the

CWC. The policy agenda discussed so far underscores the expanding nature of the

proliferation challenge in the post-Cold War era, when action is required on a broad

array of political. military and economic fronts. 103 If this agenda is to be carried

forward, it must be supported by a substantial diplomatic commitment. A much more

activist diplomacy is necessary, starting with the United States but ranging far and wide.

That diplomacy ought to reflect an integration of proliferation concerns into the patterns

of relations among states and groupings of states, so that proliferation interests are not

merely an adjunct to the large pattern of diplomatic activity. It ought also to reflect a

sustained effort to deepen coordination among states on antiproliferation through a

careful manipulation of the new incentives for cooperation. The CWC, on the one hand,

creates international mechanisms, but, on the other, requires certain activities to take

place (or not to take place) in the internation~l sphere of states.104 Production or non­

production, possession or non-possession etc., are perfor-med by actors which are

101

102

10.1

104

See, Ottice of the Secretary of Defense, n.l22, p.38.

For a fa~tual information, see "India and the World", in India 2002 -A Reference Manual, compiled and edited by Research, Reference and Training Division, Ministry of Information and Broadcasting, Government of India, New Delhi, 2002,. pp.657-680, particularly p.675.

For a discussion, see Brad Roberts, Weapons Proliferation and World Order: After the Cold War (The Hague: Kluwer Law International, 1996), p.335.

For a wide-range discussion and comprehensive analysis related to implementation issues which involve diplo'macy and legal dimension, see Michael Bothe, 'Wational Implementation of the CWC: Some Legal Considerations", in Michael Bothe, The New Chemical Weapons Convention -- Implementation and Prospects (The Hague: Kluwer Law International, 1998), pp.543-568, particularly p.543.

283

subject to national jurisdiction. Thus, the effectiveness of the Convention will to a large

degree depend on the faithful carrying out of its requirements by those national actors.

Accordingly, a correct transformation of those requirements into the national legal order

is necessary. This means two things: 105 Firstly, that insofaras obligation~: derive

directly from the text of the treaty, this text is effectively and correctly applied.

Secondly, and more importantly, that certain results which the Convention requires to

be achieved at the national level are indeed obtained. The first question belongs to the

traditional problem of the application of international treaties in municipal law. The

second one raises very complex issues of national implementation measures.

India has chaired the Executive Committee of the CWC, the powerful regulatory hub

of the treaty to ban all chemical arms. Mr. Prabhakar Menon is the first Chairman of

the 41-country Executive Council, which will oversee the functioning of the OPCW.

The Executive Committee directs and have access to confidential data on world stocks

of chemical weapons. The decision on appointment was taken at the First Session of the

Conference of States Parties (FSCSP). India received not only the endorsement of the

Asian group but also the backing of other Western groups. 106 The verification system

could be optimized to help or cooperate with national intelligences. The parties to the

Convention could be asked to provide the verifjcation body with a wealth of information

about their chemical industry. Such information is costly and difficult to gather and

could be very useful to national intelligences trying to make sense of the chemical

activities of other countries. The information could provide the Convention with a

variety of statistics and chemical data, names of people along with their functions, and

military and industrial data that parties would not have legitimate reasons to hide. The

information could be part of the data base on which the verification body would design

its strategy of inspections and would be at the disposed of the signatory parties. The

Convention should be allowed to add new inforn1ation as it deems necessary for its

verification regime. 107 Riot control agents are also not to be used as a method of

warfare. 108

IUS

106

107

108

Ibid.

For an overview on this, see Lt. General R.K. Jasbhir Singh, Indian Defence Yearbook 1998-99 (Dehra Dun, Natraj Publishers, 1998), pp.222-29, particularly p.223.

For a detailed discussion, see Benoit Morel, n.91, p.228.

See, Annual Repor.t 2000-201, Ministry of Law. Justice and Company Affairs, Government oflndia, p.29.

284

Implementation Issues and Organizational Problems

The CWC is a highly complex legal instrument, consisting of a core document c f XXIV

articles and a number of annexes, which form an integral part of the CWC. 109

Although reservations to the annexes are tolerated to the extent that they are compatible

with the CWC's object and purpose, the ewe itself will not tolerate reservations. 110

Nevertheless, the Convention is open for universal membership, 111 and is subject to

ratification. 112

Article 18 of the Vienna Convention on the Law of Treaties is a rather puzzling

provision, and has not unreasonably been called "an enigma" .113 Article 18 has been

quoted in subsequent analysis in order to applied, several complicated questions must

be answered: What constitutes the object and purpose of a treaty? How do we identify

the object and purpose? What acts would defeat a treaty's object and purpose? Those

questions themselves give rise to several other, equally difficult questions: Is there, for

example, a distinction between the object on the one hand, and the purpose on the

other? Does the phrase object and purpose have the same meaning in different

circumstances, regardless of whether it concerns the interim obligation, the

permissibility of reservations, 114 or the interpretation of treaties?115 On 13 January

1993, the ewe was opened for signature, the expectation being that it could enter into

force in 1995. Since it took time before the CWC attracted a sufficient number of

10\1

110

Ill

112

113

114

115

Article XVII of the ewe.

Article XXII of the CWC.

Article XVIII of the CWC.

Article XIX of the CWC.

Joni S. Charme, "The Interim Obligation of Article 18 of the Vienna Convention on the Law of Treaties: Making Sen~e of an Enigma", George Washington Journal of International Law and Economics. vol.25, 1991, pp.71-114.

Article 19(c) of the Vienna Convention says: "A State may ... formulate a reservation unless ... the reservation is incompatible with the object and purpose of the treaty".

Article 31 of the Vienna Convention stipulates that: "A treaty shall be interpreted .. .in the light of its object and purpose". Other provisions of the Vienna Con~ention referring to the object c.nd purpose of a treaty include Article 41 (on modification), Article 58 (on suspension between some treaty partners only) and Article 60 (on breach). For a general analysis, see Jan Klabbers, "Some Problems Regarding the Object and Purpose of Treaties", Finnish Yearbook of llllernational Law, vol.8, 1997, pp.138-60.

285

ratification to enter into force, the question arose whether or not some substantive116

obligations contained in the CWC would nevertheless rest upon those states that had

signed or ratified, prior to the CWC's entry into force. Due to the recent entry into

force of the CWC, that question has lost some, but not all of its importance. For one

thing, there are still a number of states that have not yet expressed their final consent

to be bound. Second, and arguably more important, the question is bound to surface in

connection with similar regimes. Thus, foreign offic.:es were recently contemplating the

possible existence of similar obligations in relation to the comprehen~ive nuclear test

ban treaty. Such obligations prior to the CWC's entry into force cannot rest upon

signatorit!S or ratifying states by virtue of the CWC alone, as the CWC does not provide

for provisional application. 117 If such obligations exist, they wust exist by virtue of

a rule of general international law. 118 The pertinent international legal rule is known

as the rule on the "interim obligation"; it has been formulated in Article 18 of the

Vienna Convention on the Law of Treaties, which reads:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: , .

(a)

(b)

It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

It has expressed its consent to be bound to the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

Thus, Article 18 of the Vienna Convention represents present-day customary

international law, and is thus not merely opposable to parties to the Vienna Convention,

but to other states as well. Whether Article 18 codified existing custom at the time the

116

117

118

As opposed to contain formal obligations. such as the obligation to respect the provision on entry into force. This obligation derives from Article 24, paragraph 4 of the Vienna Convention on the Law of Treaties.

Article 25 of the Vienna Convention on the Law of Treaties. See generally E.E. Vierdag, "Spanningen tussen recht en praktijk in verdragenrecht", Preadvies Nederlandse Vereniging Voor lnternatwnal Recht, 1989, pp.3-87, esp. 7-35.

As the International Law Association's Committee on Arms Control and Disarmament put in its Third Report, presentl!d to the 1996 Helsinki Conference of the ILA, impasse situations not only occur during negotiations but also after the finalization of agreements: "The discussion oflegal remedies for arms control in this b~?ader sense ?as to be based on traditional principles of international law". See also, Joni S. Charme, ; ~~ ~~ Cb\l %1.~\0>'\ I)~ A'C'~Ic.\e. \ ~ 0~ t""• v;u.,..a, c.o ... V'C.V\tJO'III 0., i.l..e L..Q..., <>{ ..... e.o.t-c~~~ """'l&.l""a' ~~.~.e. oJi ~ ... ~~a ..... o.:· uu-... -te. wo.$""' .. 3 ......... ;:Jou.T>'\ ... , .o.(

t""'-e'l..,o.th ... "'l \..o.-' "'"'"' r..U>"'.,""''"Jo, ..,~,. 1. .;;, \991 P\'., 1 - ''+ 286 I •

Vienna Convention was concluded is debatable; Strictly speaking, it presumably did

not."9 McNair, for example, writing in 1961, formulated the rule as follows: " ... one

party to a treaty must not, pending ratification, do anything which will hamper any

action that may be taken by the other party if and when that treaty enters into

force ... " 120 Arguably, such a rule is stricter than Article 18, in that it refers not just

to acts defeating the object and purpose of a treaty, but refers to "anything which will

hamper any action". 121 Yet, to say that strictly speaking the pre-Vienna Convention

customary rule differed from Article 18 is perhaps to overstate the poL1t, as in practice

the distinction between McNair's formula and Article 18 appears to have been

negligible. Indeed, post-Vienna Convention practice suggests as much, with both types

of formulas being invoked since 1969, the year the Vienna Convention was

concluded. 122

With respect to the Chemical Weapons Convention and its implementation mechanisms,

there are certain obligations rest upon signatories and ratifying states pending the

CWC's entry into force. According to Dinstein, pending entry into force both signatory

states and ratifying states, while allowed to continue to produce and stockpile chemical

weapons, are prohibited from accelerating the production and stockpiling of chemical

weapons. Moreover, Dinstein suggests that there may he some borderline issues, for

instance regarding the question whether mere testing of new weapons, without resorting

119

120

121

122

International judicial and arbitral practice was scarce, providing little authoritative guidance. In the '1910 Hoilo claims case, the tribunal reportedly found that obligations took effect upon ratification see Annual Digest. vol.3; the 1928 decision in Megalidis Vs. Turkey specified the interim obligation as "the duty to do nothing which might impair the operation" of a treaty prior to its entry into force, see also Annual Digest, vol.4. The PCU declined to deal with the issue in both the Mavrommatis Case [1925] Publ. PCU, Ser. A, and the qerman Interests in Polish Upper Silesia Case [1926], Publ. PCU, Ser. A.

Lord McNair, The Law of Treaties (Oxford: OUP, 1961); -see also Phillipe Cahien, "L'obligation de ne pas priver un traite de son object et son but avant son entree en vigeur", in Melanges Fernand Dehousse, 1979 Paris, pp.31-37, arguing that at least the duty upon signatories constituted an innovation.

Other writers contend that the rule as formulated in the Vienna Convention was declaratory of existing custom. See, for example, Mark E. Villinger, Customary International Law and Treaties (Dordrecht, 1985).

The Dutch government, in 1975, prior to acceding to the Vienna Convention, used words rerriniscent of McNair's formula, whereas the Swiss government, prior to acceding, provoked the Article 18 formula. See Paul V. McDade, "The interim obligation between signature and ratification of a treaty: issues raised by the recent action of signatories to the Law of the Sea Convention with respect to the mining of the deep seabed", Netherlands International Law Review, vol.32, 1985, pp.5-47. The same instances are mentioned in Mark E. Villiger, as has been just indicated in the previous footnote (n.59). Villiger adds a 1979 statement of the US Department of State connecting an oral agreement, which appears closer to the Vienna Convention tormula than to the McNair formula.

287

to production, would be permissible. 123 Dinstein's careful suggestions already indicate

that the interim obligation does not, with respect to the CWC, limit States' freedom in

intolerable ways. Put differently and rather bll}ntly, with respect to a treaty such as the

CWC, Article 18 of Vienna Convention is virtually meaningless, for reasons which will

be discussed below. One problem with Professor Dinstein is that he still makes more

of the interim obligation than is warranted. Jan Klabbers respectfully disagrees with

Professor Dinstein on the above-mentioned interim obligations. An argument could be

made, and quite cogently so, that at the very least the use of chemical weapons is

prohibited under customary international law; if so, the obligation not to use chemical

weapons prior to the entry into force of the ewe s~ems from international custom, not

from the CWC itself. Jan Klabbers refrains from discussing possible obligations based

on other international instruments, be they bilateral or multilateral, except and insofaras

they touch upon the interim obligation incurred by the signing or ratification of the

CWC. Moreover, he left aside the possible effects (if any) that signing or ratifying may

engender under domestic law. 124

One of the priority concerns of the negotiators was the temporal factor. 125 Article

XXI: 1 provides clear evidence of the drafters' intention not to rush into things:

The Convention shall . enter into force 180 days after the date of the deposit of the 65th instrument of ratification, but in no case earlier than two years after its opening for signature.

The number of 65 required ratification, although perhaps somewhat high, 126 is by no

means unusual. 127 What is somewhat unusual, however, is the provision that the

Convention shall not enter into force for the first two years after being opened for

123

ll<

125

126

127

Yoram Dinstein, "Ratification and Universality", in Academic de Droit International, Workshop 1994: The Convention on :he Prohibition and Elimination of Chemical Weapons: A Breakthrough in Multilateral Disarmament (Dordrecht, 1995), pp.151-165, esp. at 154. Applying the interim obligation to SALT II, Turner reached the conclusion that "a State would be prohibited from research and testing which would result in permanent and irreversible benefits prohibited by the terms' of the treaty". See also Robert F. Turner. 'Legal Implications of Deferring Ratification of SALT II", Virginia Journal of llllernational Law, vol.21, 1981, pp.747-784.

Domestic judges may sometimes apply a treaty prior to its entry into force, anticipating that entry into force will soon follow or, occasionally, upon the theory that the unratified treaty reflects customary international law. Several examples are listed in Jan Klabbers, The Concept of Treaty in International Law, The Hague, 1996.

See Jozef Glodblat, "The 1993 Chemical Weapons Convention: A Significant Step in the Process of Multilateral Disarmament", in Academic de Droit Intemational, Dordrecht 1995, pp.15-25.

The 1978 Vienna Convention on Succession of States in Respect of Treaties required only 15 ratification, Ill name just <'ne example.

UNCLOS III, which required 60 r;ttitication.

288

signature. 128 The rationale will be obvious: It was thought wise to afford states the

opportunity to senously prepare themselves to take on far-reaching obligations, which

involve or may involve the amendment of penal laws, the creation of facilities (perhaps

even agencies) with respect to verification, the construction of destruction facilities, and

an examination of those aspects related to chemical weapons upon which the CWC

establishes a regime of declarations. 129 Much of the declarations envisaged ·in the

ewe are themselves activated only after the passage of a certain amount of time,

always measured from the moment the Convention enters into force. Thus, under

Article III, a State Party shall declare "not later than 30 days" after the CWC's entry

into force in its case, whether it owns chemical weapons, where these are stored, how

many there are, etcetera. Similarly, not later than 90 days after the Convention's entry

into force, chemical weapon production facilities shall be closed. 130 In a number of

situations, the entry into force of the Convention thus sets off a "chain-reactinn". As

indicated, on-site inspection may only start after the dec1aration under Artic1e III has

been made, which is itself a provision 'triggered' by the entry into force of the

Convention. Indeed, the CWC even envisages an "order of destruction" of both

chemical weapons and production facilities. 131 Moreover, as the CWC also aims at

128

129

130

131

'Unusual' is perhaps too strong a term at least in the context of arms control agreements. There is, for example, a similar provision in the Comprehensive Test Ban Treaty. For CTBT text, see http://www.acda.gov/treaties/ctb.htm (9 November 1997). Also see ACDA, "Comprehensive Nuclear Test Ban Treaty Signatories/Ratifiers", Factsheet, http://www .acda .gov /factsheet/ wmd/nuclear /ctbt/ctbtsigs .htm (9 November 1997). See also, <http://www .ctbto.org > (Comprehensive Test Ban Treaty Organization).

See, for example, Terence Taylor, "The Chemical Weapons Convention and Prospects for Implementation", International and Comparative Law Quarterly, vol.42, 1993, pp.912-19; Panel, "Implementing the Chemical Weapons Convention: Progress and Cnallenges", in Proceedings of the American Society of International Law, vol.88, 1994, pp.221-238.

Article V. Clause 7 of the CWC stipulates that, each State Party shall:

(a) Close, not later than 90 days after this Convention enters into force for it, all chemical weapons production facilities specified in Paragraph 1, in JlCCordanc~ with Part V of the Verification Annex, and give notice thereof; and

(b) Provide access to chemical weapons production facilities specified in paragraph I, subsequent to closure, for the purpose of systematic verification through on-site inspection and monitoring with on-site instruments in order to ensure that the facility remains closed and is subsequently destroyed.

Article IV clause 6 of CWC says: "Each State Party shall destroy all chemical weapons specified in paragraph 1 pursuant to the Veritication Annex and in accordance with the agreed rate and sequence of destruction (hereinafter referred to as "order of destruction"). Such destruction shall begin not later than two years atier this Convention enters into force for it and shall tinish not later than 10 years after entry into force of this Convention. A State Party is not precluded from destroying such chemical weapons at a faster rate.

(continued ... )

289

establishing an international organization, a nexus exists between institutional and

substantive provisions. It is the stated task of the Organization for the Prohibition of

Chemical Weapons (OPCW) to achieve the object and purpose of the CWC, to ensure

implementation of its provisions, and to provide a forum for consultation and

cooperation. 132 Yet, convening the plenary organ -- the Conference -- is also explicitly

made dependent on the entry into force of the CWC. 133

Diplomacy and Issues Concerning Chemical Industry

Chemical Industry: Global Scenario

Article X of the CWC reaffirms the right of States Parties to engage in activities

necessary to protect themselves against chemical weapons {paragraph 2), and to

participate in the fullest possible exchange of equipment, material and scientific and

technological information concerning means of protection against chemical weapons

(paragraph 3). It requires the Secretariat to establish and maintain, for the use of any

requesting State Party, a data bank containing freely available mformation concerning

various means of protection against chemical weapons, and to provide, upon request and

within available resources, expert advice and assistance in identifying how programmes

for the development and improvement of a protective capacity against chemical weapons

could be implemented (paragraph 5). Paragraph 8 of Article X establishes the right of

each State Party to request and receive assistance and protection against the use or

threat of use of chemical weapons, subject to. the procedures contained in paragraphs

9-11 of Article X.

Politjcians (top leadership, decision-makers, policy articulation), time and again, have

emphasized that the achievements in the field of chemistry should be used exclusively

1.11 ( ••• continued)

1.\2

133

Articie V, Clause 8 of the CWC is still pertinen~ to mention with respect to production facilities and implementation dimension. It says that "Each State Party shall destroy all chemical weapons production facilities specified in paragraph 1 and related facilities and equipment, pursuant to the Verification Annex and in accordance with an agreed rate and sequence of destruction (hereinafter referred to as "order of destruction"). Such destruction shall begin not later than one year after this Convention enters into force for it, and shall finish not later than 10 years after entry into force of this Convention. A State Party is not precluded from destroying such facilities at a faster rate.

Articlc VII. C:ausc I of the CWC states that, "The States Parties to this Convention hereby establish the Organization for the Prohibition of Chemical Weapons to achieve the object and purpose of this Convcution, to ensurc the inmlcmcntation of its provisions, including those for international verification of wmpliancc with it, and to provide a forum for consultation and cooperation among States Parties".

For this, see Article VIII, Clause 10 of the CWC. It says: "The first session of the Conference shall be convened by the depositaty not later than 30 days after the entry into force of this Convention".

290

for the benefit of mankind as mentioned in the Preamble of ewe. This, the ultimate

goal, 134 is not a means. It is therefore timely to look again into the consequences that

the future convention -- especially as regards the verification provisions -- will have for

the chemical industry .135 When analyzing these consequences, it is important to keep

three things in mind. 136

(i) There is no Direct Comparison to Any Other International Treaty

Except possibly for the case of the German industry and the Western Europea11: Union

(WEU) treaties -- as will be described later -- there is no treaty which subjects the very

diverse chemical industry to verification provisions by an international body. Lessons

learned from the UN inspections of Iraq will be limited to technical (especially

analytical) and organizational aspects, because the inspections were based on a ceasefire

offer by the UN Security Coun~il. and compliance was enforceable by military means.

Furthermore, the International Atomic Energy Agency (IAEA) inspections which are

sometimes mentioned137 are of only limited usefulness, because they r-omprise

comparatively few installations with few easily identifiable elements (Uranium,

Plutonium, and to a Jesser degree Thorium). Yet, even where theoretically 100 per cent

of the material should be recovered, quantitative mass balances sometimes po,:se

134

136

137

CD/1085 explicitly states: "The Conference on Disarmament. .. decides ... to intensify ... the negotiations ... with a view to striving to achieve a final agreement on the Convention by 1992''. U.S. President George Bush called for a completion of the CWC in 1992, as did 50 heads of governments of the Commonwealth countries (Chemical Weapons Convention Bulletin, News Chronology, 13 May and 21 October 1991).

This subject has been investigated in the past and has been dealt with in many CD documents; detailed analyses are presented in: SIPRI, "The Problem of Chemical and Biological Warfare", vol.5; The Prevention of CBW (Stockholm: Almqvist and Wicksell, 1971); SIPRI, Chemical Disarmament: Some Problems of Verification (Stockholm: Almqvist and Wicksell, 1973); SIPRI, "The Problem of Chemical and Biological Warfare", vo1.6, Technical Aspects of Early Warning and Verification (Stockholm: Almqvist and Wicksell, 1975); SIPRI, Chemical and Biological Warfare Studies, vol.4, "The Industry and the Projected Chemical Weapons Convention", Proceedings of a SIPRI/Pugwash Conference, voi.I (Oxford: Oxford University Press, 1986); SIPRI, Chemical and Biological Warfare Studies, vol.5, "The Industry and the Projected Chemical Weapons Convention", Proceedings of a SIPRI/Pugwash Conference, vol.ll (Oxford: Oxford University Press, 1986); SIPRI, Chemical and Biological Warfare Studies, vol.9, "Non­Production by Industry of Chemical Warfare Agents: Technical Verification under a Chemical Weapons Convention" (Oxford: Oxford University Press, 1988); SIPRI, Chemical and Biological Warfare Studies, vol.ll, "National Implementation of the Future Chemical Weapons Convention" (Oxford: Oxford University Press, 1990).

For a detailed discussion, see Detlef Mannig, • At the Conclusion of the Chemical Weapons Convention: Some Recent Issues Concerning the Chemical Industry" in Benoit Morel and Kyle Olson (ed.), Shadows and Substance: The Chemical Weapons Convention (Boulder: Westview Press, 1993), pp.127-29.

For a full discussion, see Von Baeckmann, A., "The Chemical Weapons Convention and Some IAEA Experiences", SIPRI, 1998, pp.175-186; and See also, Sutherland, R., "General Introduction to the IAEA Safeguards", SIPR.I 1990, pp.31-35.

291

problems. 138 In chemical production, where yields can vary and off-specification

products may have to be destroyed, mass balances cannot, in most cases, be done

without ambiguity. This uncertainty will inevitably lead to reduced confidence in the

verification provisions. In addition, as cases of North Korea and Iraq show, even the

IAEA system cannot prevent ambiguous activities.

ii. There is No Such Thing as a Typical Chemical Plan in a Typical Country

First, there might not be any production of sc,heduled chemicals in a given country; 139

in fact, the overwhelming majority of countries does not produce any scheduled

chemicals. 140 On the other hand, there are countries where most of the scheduled

chemicals (except those of Schedule 1, of course) are produced, sometimes in vast

quantities. For example, in the United States alone, production capacities of

phosphorous trichloride were about 140,000 metric tons per year; for phosgene, they

were about 1. 8 million metric tons per year. 141

Second, chemical production plants can have widely varying sizes, and might not even

be considered "chemical", You can find chemical production ont only related areas,

such as dyes, paints, and pharmaceutical, but also in pulp and paper, textiles,

automotives, power generation, etc. Even among "purely chemical" facilities, one can

find a wide variety. There are small facilities in which only one or a few products are

being manufactured, and there are very big plant sites, such as, in Germany, those

belong to Bayer, BASF, and Hoechst. 142 (See Table below).

138

139

141

142

For a complete range of analysis on this, see Trapp, R. and Rehak, W., "Principal Objectives of Verification Methods and Results", SIPRI..-1998, p.19.

Scheduled Chemicals, referred to here, are. the <.•hemicals listed in the Annex on Chemicals of The Chemical Weapons Convention. See also, Article XVII of the CWC (Status of the Annexes). It says: "The Annexes form an integral part of this Convention. Any reference to the Convention includes the Annexes".

For a comprehensive analysis, see, Beck H. "Verifying the Projected Chemical Weapons Convention". AFES-Press Report, Mosbach 1989, pp. 77-89; Ludeking, R. "Verifying a Chemical Weapons Convention". Chemical Weapons Convention Bulletin, no.9, Harvard and Sussex 1991, p.6.

See Calderoni, Phil. "Chemical Economics Handbook Marketing Research Report. Pesticide Industry Overview" ~SRl International, 1987 and 1991). Both phosphorous trichloride and Phosgene are listed in .S~:hedule 3.

See Detlef Manning, n.l36, pp.128-29.

292

Characterization of Large German Chemical Sites (as of 1990)

Size Personnel Buildings Production (Sq.Km.) (million tons)

Frankfurt 4.0 30,000 800 2.5 (Hoechst)

Leverkusen 3.4 41,000 600 n.a. (Bayer)

Ludw~shafen 7.1 55,000 1,755 8.6 (BAS

Third, the extent of already existing supervision can vary dramatically from country to

country. In Germany, for instance, chemical c9mpanies are routinely inspected by local

inspectors, who monitor compliance with environmental safety and health regulations.

These inspections, however, are not capable of verifying exactly what is produced in

what quantities. Rather, the emphasis is on meeting permitted discharge limits or

adequately protecting workers. The impact of the ratification of a ewe on the domestic

chemical industry will thus be very different from country to country.

111. Those Articles that will have the Greatest Effect on the Chemical Industry are Among the ."rrost Controversial Articles of the Draft CWC

The provisions of the draft eWC43 which mostly address issues related to the

chemical industry are Articles VI, IX, XI, 144 and, to a lesser degree, VII. It is hardly

a coincidence that Articles VI and IX (includi~g their corresponding Annexes), as well

as Article XI, are among those that still needed the most consideration a~; of the

beginning of 1992. 145 These articles thus were rate-determining for the progre~;s of the

final negotiations, as was observed in 1986:

143

144

145

The phrase "draft CWC" in this paper is used synonymously· with CD/1•170, the final version of the rolling text which was s•Jbmitted to the United Nations General Assembly. The "rolling text" is the continuously updated version of the joint preliminary and non-binding draft Convention on Chemical Weapons which is being negotiated in the Ad Hoc Committee on Chemical Weapons. It reflects the preferences of delegations to the Conference on Disarmament at the end of each session.

For more details, see the Text of the CWC. Article VI of the CWC broadly deals with "activities not prohibited under this Convention" whereas Article IX and Article XI deals with "Consultations, Cooperation and Fact-Finding"; "Economic and Technological Development", respectively. As mentioned earlier Article VII is related to national implementation measures.

For a detailed discussion, see O'Sullivan, P., "Concluding the Chemical Weapons Convention", Chemical Weapons Convention Bulletin, no.l3, Harvard and Sussex 1991, p.1; Molander, J. "The Chemical Weapons Negotiations at a Critical Juncture: Is There a Way Ahead?" Chemical Weapons Convention Bulletin, no.IO, Harvard and Sussex 1990; p.l4; CD 1108 merely states, under the heading "Procedure for requesting a fact-finding mission"; "The further contents of Article IX remain to be elaborated".

293

In conclusion. it must be underlined that in the field of verification major areas of disagreement remain which, at least under present prospects, may ultimately prove to be the most significant block to the rapid completion of a Chemical Weapons Convention. 146

Export Control Mechanism Under CWC

Export control is a component of the Convention's integrated enforcement mechanism.

Despite recent interest in export control, its implementation is and will remain a

primarily national bureaucratic process. In the case of the Convention, this bureaucratic

process will, for better or for worse, play an important role. The treaty provides for

trade sanctions on chemical exports from countries that are not signatories to the treaty.

This could be a reason why the influential U.S. chemical industry would have attracted

automatic sanctions had the treaty not been ratified. It was feared that the industry

would lose more than $600 million annually and that many jobs would be lost. The

manufacture of chemical weapons does not require truly specialized equipment or totally

specific precursors. Denying Third World countries all equipment and precursors which

have dual use would, in most cases, be tantamount to denying them the right to develop

their all chemical industry. Much fides on the specifics of the situation. If a country

which has no agriculture wishes to purchase a plant to manufacture organophosphorus

pesticides arid equipment resistant to the corrosion of fluoride and suitable for the

manufacture of highly toxic chemicals, one can raise legitimate questions about the

propriety of an export license. Yet such a clear case will obviously never occur, and

export control used as an instrument of enforcement of the CWC could legitimize a

bureaucratic hindrance to international trade. 147 An over-reliance on export controls

could create conditions for bureaucratic tensions inspired by the ever-present fear of

circumvention or by the use of export controls to defend the economic interests of a

country.

The chemical industry, as represented by the Chemical Manufacturers Association

(CMA), has been an active participant for fifteen years in the efforts of the United

States to obtain an effective, technically sound, verifiable Convention that will rid the

world of chemica! weapons (CW). With CW production available to any government

with access to facilities equal to the level of sophistication that prevailed in 1916, and

1-16

147

For more details, see Trapp. R., "The Geneva Talks on Chemical Weapons and Attitudes Displayed Towards the Chemical Industry", S/PR/1986, p.l23.

For a nuanced understanding, see, Benoit Morel, n\}6, pp.225-26.

294

with most CW intermediates and precursors having valid civilian uses and produced in

quantities far exceeding a government's CW demand, there is no question that a viable

Convention must encompass the chemical industry on a worldwide basis. 148 Further,

a meaningful, realistic Convention must be verifiable and, therefore, intrusive. The

CWC could inspire or legitimize an export control policy harmful to Third World

economies would be, to say the least, undesirable and unfortunate. 149 Chemistry is

important for agriculture and will be an important factor in the economic development

of many countries.

India ratified the CWC in October 1995 and deposited the instruments of ratification by

September 1996. Indian chemical manufacturers were strong proponents of ratification

as the body feared any delay would have a negative impact on India's chemical exports.

However, intrusive inspection regime and restrictions have raised doubts about the

Convention even in India. As a member of the CWC, India has also spelt out a list of

other "specific chemicals", manufactured by its chemical industry. Production of these

chemicals is permissible provided they are not diverted for weapon use. "The interests

and rights of India's chemical. industry" have been upheld under the regime. 150India

has set up a national watchdog authority as part of its obligations as a founder-member

of the global Convention to ban chemical arms. The National Authority (NA) will also

carry out a variety of additional functions, which include OPCW inspections. The NA

will also establish a data bank, registering, for instance, the list of entities engaged in

activities related to the Convention. Besides, the authority will also provide appropriate

facilities to train suitably national inspectors and industry personnel to help carry out

the Convention obligation. The NA is headed by a Chairman who is supported by a

suitable Technical Secretariat. Besides that, the Cabinet Secretary will Chair a high­

level steering committee which also has the Secretary (Chemica: and Petrochemicals),

the Foreign Secretary, the Secretary, Defence Research and Development, the Defence

Secretary and the Chairman NA as its other members. Despite its flaws and limitations,

export control can contribute to the enforceme,pt of the Convention by complicating the

148

149

I;Q

For a detailed discussion, see Will D. Carpenter, "Understanding Chemical Industry Support for the CWC and its Concerns about Implementing Legislation" in Brad Roberts, ed., Ratifying the Chemical Weapons Convention (Washington, D.C. : The Center for Strategic and Intemational Studies, 1994), pp.29-32, particularly p.30

See Benoit Morel, nl!P. p.226.

A statement by Mi1.1istry of Defence, Government of India, on 26 June 1997.

295

task of violators. It can also generate evidence suggesting a violation of the Convention.

This evidence, has, in a sense, much in commQn with that which is gathered by national

intelligence organizations. The country possessing the evidence has its choice of

behaviours. It can choose to share its suspicion or not, prohibit the sale or not, or even

make its own enquiry to see whether the suspicion is justified.

A chemical industry-related facility inspection team (for Schedule 2 and Schedule 3

chemicals) would consist of an average of eight specialists and would include: Chemical

Production Technologists, Industrial Chemists, Chemical Production Logisticians

(Material Resources Planning Specialists) and Analytical Chemists. The Annex on

Chemicals contains lists of chemicals that have been identified for the application of

verification measures. There are three lists, Schedule 1, Schedule 2 and Schedule 3,

each divided into two parts: toxic chemicals ana precursors. Even States adhering to the

principle of free international trade provide for the possibility of supervising this trade

and for preventing, if necessary, certain transactions. 151 The reasons for such a

possibility (and where necessary use) of controls are both economic and political. A

major consideration in these barriers to free trade have been security considerations. It

is on che basis of such enabling provision existing in the foreign trade law of many

countries that embargoes are being implemented, including embargoes decided upon by

the Security Council. These provisions have been of particular relevance for chemical

weapons related export controls so far, the (dis)continuance of which poses certain

problems. To the extent that the CWC still requires export controls, 152existing export

control legislation may indeed be relevant and enforced by the existing export control

administration.

Chemical Industry in India

The published literature pertaining to and detailing India's chemical industry is

extremely sparse, few and far between. The chemical industry is one of the oldest

151

152

For a detailed discussion, see Michael Bothe, "National Implementation of the CWC: Some Legal Considerations" in Michael Bothe (ed.), The New Chemical Weapons Convellfion-lmplementation and Prospects (Th.: Hague: Kluwer Law International, .J 998), pp.543-68, particularly p.555.

See, Verification Annex of the CWC, Part VI, Para.l, 3-6; Part VII, Para 1, 31, 32; Part VIII, Para I, 26, 27.

296

domestic industries in India, 153 ~ontributing significantly to both the industrial and

economic growth of the country since it achieved independence in 194 7. The chemical

industry in India, currently produces nearly 70,000 chemical products, ranging from

cosmetics and toiletries, to plastics and pesticides. The wide and diverse spectrum of

products can be broken down into a number of categories, including inorganic and

organic (commodity) chemicals, drugs and pharmaceutical, plastics and petrochemicals,

dyes and pigments, fine and specialty chemicals, pesticides and agrochemicals, and

fertilizers.

The Indian pesticide industry has advanced significantly in recent years, producing more

than 1 ,000 tons of pesticides annually. India is the 13th largest exporter of pesticides

and disinfectants in the world, and in terms of volume, is the 12th largest producer of

chemicals. 154 The Indian agrochemical, petrochemical, and pharmaceutical industries

are some of the fastest growing sectors in the Indian economy. With an estimated worth

of $28 billion, it accounts for 12.5 per cent of the country's total industrial production

and 16.2 per cent of the total exports from the Indian manufacturing sector. With a

special focus on modernization, the Indian government takes on active role in promoting

and advancing the domestic chemical industry. The Department of Chemicals and Petro­

Chemicals, which has been part of the Ministry of Chemicals and Fertilizers since 1991,

is responsible for policy, planning, development, and regulation of the industry. 155 In

the private sector, numerous organizations, including the Indian Chemical

Manufacturers Association (ICMA), the Chemicals and Petrochemicals Manufacturers

Association, and the Pesticides Manufacturers and Formulators Association of India, all

work to promote the growth of the industry and the export of Indian chemicais. The

ICMA, for example, represents a large number of Indian companies that produce and

export a number of chemicals that have legitimate commercial applications, but also can

15l

154

ISS

.. .

For u detailed Jist of chemical chronology of India from 1920-1979, see "Nuclear Threat Initiative (NTI): Country Overviews: India's Chemical Chronology" at Nuclear Treat initiative website at <http://www .uti.org/e _research/proti1es/lndia/Chemical/2324 .htm1 > . This annotated chronology is ~a sed on the data sources that follow each entry. Public sources often provide conflicting information on classified military programmes. Inclusion in this chronology does not necessarily indicate that a particular development is of direct or indirect proliferation significance.

See. Nuclear Threat Initiative (NTI), Country Overviews: India's chemical chronology 1920-1979" at the website· Nuclear Threat Initiative <http://www .nti.org/e _research/profiles/India/Chemical/index. html >, accessed on 3 February 2004.

For a broader :mderstanding of the chemical industry in Indian context, see Annual Reports from 1992 to 2003, Ministry of Chemicals and Fertilizers, Government of India, New Delhi. See also, "About us", Department of Chemicals and Petrochemicals at < http://chemicals.nic.in/vschemicals/org 1.htm >.

297

be used as precursors and intermediates for chemical weapons production. The sector

wide breakup of the Indian chemical industries as follows: Ftrtilizers-18 pert cent,

organi~.: 15 percent, inorganic 8 percent, polymer 6 per cent, pharmaceutical 15 per

cent, Dyes 3 per cent, Paints 3 percent, Synthetic Fibres 16 per cent and others 16 per

~.:em.''(>

India's capability to produce chemical weapons is greatly enhanced by the sophistication

of its domestic chemical industry. A number of goverrunent-owned and private sector

companies produce an array of dual-use chemicals that are potential chemical weapons

precursors and intermediates. A number of the_ domestically produced chemicals can be

found on the Chemical Weapons Convention (CWC) list of Schedule 2 and Schedule 3

Chemicals, 157 as well as on the Australia Group's chemical export control list (India

is not a member of the Australia Group). For example, Indian companies are capable

of producing, or currently produce, 2-chloroethanol and thiodiglycol (both mustard

precursors), phosgene, hydrogen cyanide (blood agent), and trimethyl phosphite and

thionyl chloride (nerve agent precursors). Article II, para 9 of the CWC reads as:

"Purposes not prohibited under this Convention", which means:

(a)

(b)

(c)

(d)

Industrial, agricultural, research, medicine, pharmaceutical or other peaceful purposes;

Protective purposes, namely those purposes directly related to protection against toxic chemicals and to protectiOn against chemical wear,ons;

Military purposes not connected with the use of chemical wear,ons and not dependent on the use of the toxic properties of chemicals as a method of warfare;

Law enforcement including domestic riot control purposes.

These four sub-clauses have incorporated in "The Chemical Weapons Convention Act,

2000" by lndia. 158

lj6

157

158

For details see "The Indian Chemical Industry: Strategic Initiative Needed from the Government and the Industry", Chemical Industry Review, Official Journal of the Indian Chemical Manufacturers Association (January, 2001), pp.18-20, accessed on 3 February.2004. "Chemicals", Department of Chemicals and Petrochemicals at <http://www.indiachem2002.com/indiachem2002/industry. status.htm>. See also "Indian Chemical Industry: Sectors •, Indian Chemical . Manufacturers Association at <http://www .icmaindia.com/iciO 1 :frm.html > .

See the text of 1993 Chemical Weapons Convention (CWC) at <http://www .opcw .org >. In the CWC text, there is "Annex on chemicals" and guidelines for schedules of ch~micals. There are three schedules of ch~micals. See the exhaustive list of schedule 2 and Schedule 3 Chemicals in the CWC text.

See, The Chemical. Weapons Convention Act, 2000, Chapter 1, Article 2, Clause K.

298

United Phosphorous Ltd., a Bombay-based company, produces a number of nerve agent

precursor chemicals that are listed on Schedule 3 of the CWC, including phosphorous

trichloride, phosphorous pentachloride, triethyl phosphite, and trimethyl phosphite. In

1992, United Phosphorous's export license was suspended for shipping trimethyl

phosphite to Syria. 159 Another Indian Company, Transpek Industry Ltd., also

produces a number of dual-use chemicals including thionyl chloride and sulfur

dichloride. In 1990, Transpek Industry Ltd., won a bid to install and commission a

turn-key chemical plant in Iran, worth an estimated $12.5 million, and in 1996 the

company built the world's largest manufacturing facility for thionyl chloride outside of

Europe. 160 Some Indian companies also produce a wide range of dual-use equipments

and materials that can be used to produce chemical weapons, including glass-lined

reactor vessels with a total volume greater than 100 liters, glass-lined storage tanks with

a total volume greater than 100 liters, and other equipment and technologies associated '

with chemical weapons development. 161 GMM Pfaulder Ltd., for instanct!, of

Karamsad, Gujarat, is one of the leading suppliers of glass-lined equipment anu other

specialized process equipment for the Indian chemical industry. 162

Status of Chemical Industry in India

India has submitted declarations on its "testing and development of chemical weapons

on their related facilities which were developed only to deal with the situation arising

out of the possible use of chemical warfare against India". 163 Chinese defense

researchers have claimed that India possesses 1,000 tons of chemical warfare agents,

which are located at five chemical weapons production and storage facilities. It is

indicated that these agents include mainly mustard and there are several possible

delivery munitions. India has a sophisticated technology base to develop various .. .

delivery systems for chemic~l weapons agents. Though it must be noted that all open . . . . .

sourci.! research indicates that India has not weaponized a chemical warhead, it does not

160

1~1

162

163

St:t: "Nuclear Threat Initiative (NT!), Country Overviews: India's Chemical Overview" at < http://www.nti.org/e_research/profilcs/lndia/Chemical/index.html > accessed on 3 February 2004.

Ibid.

Ibid.

Ibid.

See "Penal Provisions in Chemical Weapons Bill", 1'l;e Hindu (New Delhi), 24 August 2000.

299

lack the scientific expertise or resources, if so needed. 164 The sophistication of India's

chemical industry would allow it to rapidly reconstitute a significant chemical weapons

capability, if it chose to do so. The strategic initiatives from government side should

take into consideration the endemic problems hindering Indian chemical industry; what

mainly ails the Indian chemical industry and its immediate cause; the Indian chemical

industry vis-a-vis · global trends, sweeping changes in various sectors during

globalization era; and finally, the proposals and strategies for building a globally

competitive Indian chemical industry. And it should be " .. .in a manner which avoids

hampering the economic or technological development of States Parties, and

international cooperation in the field of chemical activities for purposes not prohibited

under this Convention including the international exchange of scientific and technical

information and chemicals and equipment for the production, processing or use of .. chemicals for purposes not prohibited under this Convention. 165

National export controls have certainly been very effective in slowing down chemical

armament programs. As the history of Iraq's armament program shows, it has been

turned down by several companies in different countries. 166 Moreover, the

construction of the Rabta plant in Libya, like the construction of Iraq's facilities, took

many years. The builders of the Rabta plant had to set up a lot of "front" companies

in different parts of the world -- an undertaking which demonstrates that a lot of

criminal energy and effort is needed to violate international regulations (even though it

appears to have finally been successful, at least in part). Thus, it appears that national

nonproliferation measures will at best delay, not stop, the spread of chemical

weapons. 167 Such measures tend to be discriminatory by dividing the international

community into "responsible developed countries" and "ilTesponsible developing

164

165

166

167

See, "Nuclear Threat Initiative (NTI) Country Overviews: India's Chemical Overview" at <http://www .nti.org/e _ research/profiles/India/Chemical/index.html > accessed on 3 February 2004.

See Article VI, para.11 of the Chemical Weapons Convention (CWC) which mainly deals with "Activities not Prohibited Under this Convention".

See Ignatius, D. "Iraq's Pursuit of Poison Gas", The Record, 2 October 1988.

An overview is provided by Herby, P., "Beyond Partial Measures: Non-Proliferation and the Geneva Disarmament Negotiations", in J.P. Zanders and E. Remacle (ed.), Chemical Weapons Proliferation: Policy Issues Pending on International Treaty. Proceedings of 2nd Annual Conference on Chemical Warfare, (Vrije Universsiteit Brussel, 1990), pp.93-101.

300

countries". 168 In addition, they may slow down the peaceful development of a national

chemical industry base in developing countries by denying access to peaceful

technology. As India has one of the largest chemical industries in the world, this

industry will benefit from unrestricted trade and technology access which would be

denied to non-members of the treaty.

It is important to remember how large and almost ubiquitous the international chemical

industry is. The chemical industry: 169

Has facilities and customers in a variety of locations;

Produces many tons of different types of materials annually;

Encompasses many different industries, among them the automotive, food, ~1ectronics, textiles, and pharmaceutical industries;

Has owners from government, private, and semi-private sectors;

Uses many different types of technologies;

Employs a vast number of people; and

Affects the life of every person in the world.

Next, the world chemical industry is rapidly evolving. For example, every part of the

industry is continually improving its manufacturing processes. Such improvement

involves changes in construction materials, production 1:;ontrols, and process parameters

such as temperature, pressure, reaction time, catalysts, etc. The technology currently

in use ranges from 1930s to state of the art, and, ia1portantly, chemical weapons can

be produced at facilities anywhere within this entire range of sophi:.;tication. Other

changes rapidly taking place within the chemical industry result from continued concern

for worker health and safety and growing concern for the environment. These changes

are affecting every aspect of the industry, including record-keeping procedures, process

design, equipment specification, limitation of waste production, and improved control

of waste disposal, emissions, and discharge ·practices. For instance, manufacturing

processes which u:;e comparatively innocuous substances are now treated in a manner

once reserved for far more toxic materials. Certain "signature" materials and practices

that formerly served as indicators for chemical weapons are now common safety

168

169

For a comprehensive analysis, see Kamal A., "The Chemical Weapons Convention: Some Particular Concerns of Developing Countries". Chemical Weapons Convemion Bulletin, no.4, Harvard and Sussex 1989, p.l.

For a wide-rangmg discussion on this, see Will Carpenter, "The Perspective of the Western Chemical Industry" in Benoit Morel and Kyle Olson (eds.), n.l36, pp.ll5-126, particularly p.ll8.

301

features. 170 Additional controls or restraints on the use of these materials, many of

which have dual uses, could significantly damage industry without furthering. treaty

objectives. Also proceeding rapidly are changes in methods of producing, shipping,

storing, distributing, and using chemicals. These changes are driven by economics,

regulations, competition, and customer demand. Moreover, industry-wide changes a;:-e

also occurring in methods of storing data about everything f10m raw materials to

customers. To keep abreast of these changes, the industry is rapidly replacing its paper

files with electronic ones.

In addition to b~ing large, and changing, the chemical industry is also extraordinarily

complex. For example, all of the following factors make documentation of ownership

and quantitative determinations difficult: 171

The complex relationship of products to end uses;

The many forms and concentrations possible for a single product;

Product blends, dry-mixing, and repackaging; and

Complex distribution, transportation, and warehousing services.

Moreover, throughout the production process, questions about how products can be

tracked and who owns them are also extremely complicated. In many cases, individual

products are produced at a chemical facility where the production unit is owned by one

company and operated by another on a contract basis. In other cases, a product is not

used at one locCition, but reacted in various processes at different facilities, with its title

being transferred as it moves from site to site. These are the current status of the

chemical industry.

Related to the demands on the chemical industry, 172 the degree to which the .ndustry

is currently subject to governmental regulation, control, and reporting requirements

varies widely from one country to another. However; in general, the chemical industries

in Western countries are heavily regulated. For instance, in particular, the U.S.

chemical industry is subject to stringent regulation at the federal,state, and local levels

of government. There are many countries, however, which have substantially fewer and

less sophisticated means of control and documentation. These countries do not yet have

170

171

172

Ibid., p.ll9.

Ibid.

Ibid., pp.ll9-12l.

302

the governmental infrastructure necessary to meet tne reqmremems or me ueaty.

Experience teaches that it will take these governments years to develop, the systems,

train the people, and establish the procedures required to routinely meet the

requirements of the treaty. As a corollary, it will also require from industry a great deal

of time, effort, money, and commitment to establish the necessary infrastructures to

comply with the treaty's regulatory regime. For example, industry will have not only

to train many workers but also to establish the neces:mry procedures for record-keeping,

sampling procedures, methods of analysis, -and other tasks. Doth government and

industry in non-industrialized nations will have to expend substantial resources to build

the infrastructures which will enable them to comply with the treaty. They might profit

by examining how Western industrialized nations currently regulate their chemical

industries, and how these countries developed regulatory systems. By learning from the

successes and failures of these countries, other governments and industries may be able

to save time and other valuable resources in implementing their own regulatory regimes.

In addition, these governments and industries might receive direction and resources

from the internaticnal authority to help them meet the schedule of the treaty.

The chemical weapons treaty will subject the chemical industry to much greater

demands than parallel international agreements impose upon the nuclear industry. 173

For example, the chemical industry will be required to compile a list of the locations

of its facilities, generate data on production and consumption of groups of chemicals,

submit to inspections of categories of facilities, etc. Moreover, industry, the secretariat

of the ewe. the international inspectorate, and the national authorities will consume

fare more resources to comply with the ewe than the International Atomic Energy

Agency (IAEA) must to comply with its regulations. If the ewe treaty is completed

in 1992, signed, and then submitted for ratification by the respective national

governments, the chemical industry of each country will have to devote even rr.ore time

and effort. It will have to begin working even harder to bring them up to :;peed on

aspects of treaty, ratification procedures, enabling legislation, implementation

procedures, and likely impacts on industry. In addition, it will have to work hard to

educate the pharmaceutical, electronic, automotive, petroleum, and food industries about

the implications of the ewe. Furthermore, the executive and legislative branches of all

173 Ibid., p.l21.

303

states joining the treaty will need industry's advice any assistance during the ratification

process and the drafting of implementing legislation. Moreover, the chemical industry

will have to be actively involved when the preparatory commission (which will form

shortly after the signing of the treaty) drafts key regulatOry provisions for the treaty

organization. Finally, of course, the actual compliance efforts will require a

commitment of resources on the part of industry that will be at least an order of

magnitude more than those spent up to this point.

Some of the other responsibilities facing the chemical industry include the

following: 174

i.

ii.

iii.

iv.

V.

vi.

Seeing that an additional five to ten trade associations actively participate in the compliance process by providing personnel and educating trade asscciation members.

Cooperating with government throughout the process.

Holding a series of ten to twenty seminars of one or two days' length in various parts of the country with personnel from both mdustry and government.

Requiring industry associations to assemble pertinent treaty-related literature, which should include history, statutes, implications, requirements, etc., for distribution before and during these seminars.

Increasing the number of industry people routinely participating in trade association activities dealing with vanous aspects of the treaty.

Establishing bases of support in these . areas: Law; manufacturing; marketing; shipping; record-keeping; public relations; and government relations -- ali of which will involve personnel who will already be committed to other important and time-consuming assignments.

There is no question that the chemical industry will continue t~ support efforts to obtain

a valid, technically sound treaty. The industry is well served by being a positive force

in the development of such a treaty. As a responsible international citizen, the industry

needs to be able to operate in an atmosphere in which itself and its products are

accepted by any society. The. presence of chemical. weapon~ anywhere in the world,

which less the use of those weapons, tarnishes the reputation of the industry. However,

unfairly, the whole industry becomes suspect when these weapons exist. The CWC is

blazing new trails in the history of agreements among nations. The treaty is easily the

most complex, detailed document of its kind to be considered by the family of nations.

It is also the most technology-based document, exceeding even any of the treaties

dealing with nuclear issues. Finally, the treaty will have an enormous impact on a

174 Ibid., pp.l22-23.

'11\A

worldwide civilian industry -- the chemical industry. The treaty negotiation process

demanded a unique relationship between diplomats and chemical industry experts.

Through resolve, both parties developed necessary mutual understanding; now they must

devote even greater efforts to completing the negotiations and implementing subsequent

regulations. However, because the negotiators ·still have little skill and experience in the

regulatory arena of the chemical industry, the implementation process must allow for

sufficient time and resources to accomplish its objectives, especially in the less

developed areas of the world.

India has an advanced commercial chemical industry and produces the bulk of its own

chemicals for domestic consumption. Countries like India, having strong and large

industrial base and excellent research and development (Rand D) set up in the chemical

industry specially pharmaceutical sector, the issues involving chemical industry and

Trade-Related Intellectual Property Rights (TRIPs) would be dominating in tLe years

to come. In this respect, the role of the CWC and the World Trade Organization (WTO)

will be extremely vital to identify issues and synergies efforts for the effective

implementation of the CWC. When it mentions efforts, it involves the considerable

leverage of diplomacy, negotiation, stakeholders relating to each sub-issues under

chemical industry. The developing countries such as India, China, Brazil and South

Africa should have a consensus and collective bargaining capabilities while addressing

issues involved in the chemical talks. The negotiations of the CWC sought to adhere a

reasonable balance between two conflicting objectives: On the one hand, providing

sufficiently intrusive verification to build confidence in compliance, and on the other

hand, protecting non-treaty-related trade secrets and national security information. In

the final analysis, however, the success of the treaty depends upon how well and how

soon each of its parties is able to comply.

Internal Application of Treaties: A General Framework

The internal application of treaties as such raises well-known general questions of the

relationship between international law and national law. In many countries, an

international treaty concluded by the state becomes part of the internal law, albeit to a

certain extent and under certain conditions only. This is the case, for instance, in the

305

United States, in Germany and in the Netherlands. Although Article VII of the

CWC175 requires each signatory to the treaty to designate a National Authority (NA),

it deliberately leaves the task of defining the structure of these organizations to each

respective State Party. The Convention also largely avoids defining the powers or

responsibilities of the NA, beyond the rather vague charge to serve as "the national

focal point for effective liaison". It is hardly surprising that the CWC's authors believe

that "the role of the National Authority might need to be further developed". 176

Where it is the case, rights and duties in the sphere of the internal law of the state may

be derived directly from the Convention. 177 But that possibility does not exist in all

countries. In particular, the Commonwealth countries following the United Kingdom

model do not accept this automatic incorporation of a treaty into national law. Under

their system, special implementing legislation is required. 178 Thus these many treaties

concluded by the United Kingdom which may not be invoked, at least not as a matter

of principle, before the courts of that country. That does not or not necessarily mean

that a treaty cannot be applied where there is no specific implementing legislation.

There are cases where such implementing legislation is not adopted on the basis of the

assumption (which may or may not be correct) that the internal law of the United

Kingdom anyway prescribes what the treaty requires. 179 It is a question which

deserves careful consideration in each particular case. Even where a treaty is

automatically incorporated into the internal legislation of a countr), this does not

m

176

177

178

179

See, Article VII, Par.4 of the CWC. It says: "In order to fulfil its obligations under this Conveution, each State Party shall designate or establish a National Authority to serve as the national focal point for effective liaison with the Organization and other States Parties. Each State Party shal, notify the Organization of its National Authority at the time that this Convention enters into force for it".

From a footnote to Article VII on page 27 of an earlier version of the "Rolling Text", Draft Report of the Ad Hoc Committee on Chemical Weapons to the Conference on Disarmament on its work during the pe;·iod 30 September 1991 to 20 January 1992, CD/CW/WP 379 (20 January 1992).

For the purpose of this analysis, it is not necessary to go into the details of the theoretical and practical questions of tl•e relationship between international treaties and internal law, see K.J. Partsch, International Law and Municipal Law, R. Bernhardt (ed.), EPiL, .voi.IO, pp.238-247. For a review of constitutional provisions, see also Nahlik, S.E., "General Rules concerning the Application of Treaties in the National Legal Order" in M. Bothe, P. Macalister-Smith, T. Kurzidem (eds.), National Implementatifln of International Humanitarian Law (Dordrecht, 1990), p.6; and M. Leigh and M.R. Blakeslee, National Treaty Law and Practice (Washington, D.C. : 1995).

On this problem, see Draper, G.I.A.D., in M. Bothe et al., The New Chemical Weapons Convention -Implementation and Prospects (The Hague: Kluner Law International, 1998), p.12.

This is, for instance, the solution adopted for the European Convention on Human Rights. See Ian Brownlie, Principles of Public lntemational Law 3rd cdn. (Oxford: Oxti.Hd University Press, 1979, 1985 reprint).

306

necessarily mean that it can be applied directly by the courts of that country or other

relevant actors. There remains the question whether the content of the international legal

rule is such that it can be so applied. This problem is generally known as the question

of the self-executing character of international norms, in particular treaty

provisions. 180 Whether or not a certain treaty provision is self-executing is often

difficult to decide. Self-executing norms are in particular those which impose a clear

duty of abstention on the State. 181

Pertaining to the implementation aspects of the CWC, the general obligations contained

in Article 1, paragraphs 1 and 5, of the CWC can be considered as self-executing, as

they contain . clear prohibitions which can and must be applied without any further '

additional measures being taken by any member state or by the OPCW. 182 But these

prohibitions only relate to acts and omissiOilS of the state itself. Where the ewe

concerns private activities, it is to a large extent not self-executing. A central provision

is the 'prohibition' of certain chemicals. According to Article VI, paragraph 2, of the

ewe,

180

181

182

Each State Party shall adopt the necessary measures to ensure that toxic chemicals and their precursors are only developed, produced, otherwise acquired, detained, transferred, or used withm its territory or in any other place under its jurisdiction or control for purposes not prohibited under this Convention. To this end, and in order to verify that activities are in accordance with obligations under this Convention, each State

For a detailed discussion, see Bleckmann, A., "Self-Executing Treaty Provisions" in R. Bernhardt, EPIL, vol.7, p.414.

For instance, it is clt:ar that most provisions of the International Covenant on Civil and Political Rights are self·executing. 0.1 the other hand, the entire International Covenant oa Economic, Social and Cultural Rights is not self·executing. That treaty contains 'promotional obligations' only. See Article 3 of the International Covenant on Economic, Social and Cultural Rights. Acc01ding to its Article 3: "Each St:.te Party ... undertakes steps ... with a view of achieving progressively the full realization of the rights recognized".

Article I, para I of the CWC states that "Each State Party to the Convention undertakes never under any circumstances.

(a) T 0 develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;

(b) To use chemical weapons;

(c) To eugage in any military preparations to use chemical weapons;

(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention".

Article I, para 5 also comes under the purview of general obligations. This article in para 5 can also considered to be as self-executing. According to its Article I, para 5: "Each State Party undertakes not to use riot control agents as a method of warfare".

307

Party shall subject toxic chemicals and their precursors listed in Schedules 1, 2 and 3 of the Annex on Chemicals, facilities related to such chemicals, and other facilities as specified in the Verification Annex, that are located on its territory or any other place under its jurisdiction or control, to verification measures as provided in the Verification Annex.

This is not a prohibition which would be applicable as it stands without additional

national legislation or rule-making. It is a classical example of a non-self-executing

provision. 183 Thus, national implementation legislation is necessary in order to make

this provision effective in the internal sphere of states. A question closely related to that

of non-self-executing norms is what might be called incomplete norms. The CWC

contains a number of information duties. States must give reports or make declarations

regarding certain facts such as the production of chemicals. These rules presuppose that

the state possesses the necessary information. They are completely silent as to how the

State gets this info;mation. But the Convention is violated if the state does not give this

information. The fact that a state is unable to get it does not constitute an excuse. Thus,

states are well-advised to adopt implementing rules which enable them to obtain the

information they are internationally required to give. 184

The complex interactions and procedures by which international agreements are

formulated, ratified, and implemented are rarely thought of as a system. But these

agreements are, in fact, governed by predictable set of actors engaged in a relatively

structured process of negotiation, constrained by formal and informal rules and customs.

The "system", such as it is, exists by default in many cases, and its weaknesses may

not be apparent. 185 Before the treaty-making process can be strengthened, we must

understand the way this system operates. The actors in the disarmament treaty-making

system include governmental leaders, unofficial or non-governmental intere8t groups

(including inter-governmental organization, business associations, and ~;cientific

associations), and multilateral entities-- partictJlarly agencies of the United Nations such

as the International Atomic Energy Agency (IAEA) and in case of the CWC-OPCW as

the case may be and a host of pertinent organizations. These actors gather information,

IRJ

184

185

For a full dis:.:ussion and details, see Michat!l Bothe, n.l78, p.545.

Ibid.

In a common parlance, system refers to a set of elements act in a unified manner. For a comprehensive overview for treaty-making and multiple actors, see Lawrence E. Susskind, Environmental Diplomacy: Negotiating More Effective Global Agreements (New York: Oxford University Press, 1994), pp.ll-42, especially p.ll.

308

exchange ideas, formulate proposals, and meet m informal and formal sess10ns to

negotiate, prepare legal documents, and vote whether or not to accept new

responsibilities. They meet periodically to review how well they have done and

determine whether or not to take further action. 186

For the most part. these interactions are guided by the formal rules and informal

practices that the United Nations has evolved over several decades. They are also

shaped, to a lesser extent, by a body of international law -- mostly what is called "soft

law" --that reflects commonly accepted norms. Finally, and most important, the treaty­

making process is constrained by the global interplay of domestic politics: 187 In the

final analysis, only agreements that are politically acceptable to national leaders will be

approved. This complex web of actors, institutions, and practices is always in motion,

animated by the efforts of individuals and organizations to advance their interests,

selfish or otherwise. Not surprisingly with all that is going on, it can be difficult to

gauge, at any moment, whether or not the system is working well. Indeed, there are

serious disagreements about how to measure the success of a treaty-making efforts. For

those involved directly in treaty negotiations, the signing of formal agreements, after

years of debate, seems like a tremendous victory. The CWC is a case in point in this

respect. Yet, for the rest of us, if would be a mistake to measure success in terms of

anything less than tangible arms control/disarmament improvements, regardless of the

amount of time or effort it took to hammer out the legal accords. Many overlapping

forces are at work, which makes it difficult to keep trace of improvements.

Where a treaty becomes part of internal law, it has in many states the same rank as

statute law. 188 In other states, treaties prevail over ordinary statutes. But in both cases,

the constitution, in the internal sphere, prevails over the treaty. Constitutional provisions

which place the treaty above the constitution, like in the Netherlands, are rather rare.

Where the treaty does not become incorporated into national law and where thus

implementation legislation is needed, it is a case of 'normal' legislation over which a

constitution, if the country has a written constitution, prevails anyway. If there is a

conflict between the constitution and the treaty .• and if there is a provision for a judicial

186 Ibid.

187 Ibid., pp.ll-12.

188 See K.J. Partsch. n.lll. p.249.

309

review in such a case, the relevant national actors must apply the constitution and not

the treaty. No state can rely on its own law (that includes the constitution) in order to

justify non-compliance with its international obligations. 189 Article 46 of the Vienna

Convention on the Law of Treaties provides only for a very limited exception of that

rule. But as a practical matter, the state will be prevented from respecting the treaty if

the treaty viola~es the Constitution.

Once the parties have adopted the text of an agreement, the next step is to secure

signatures. For sub-regional conferences involving a relatively small number of parties,

each country normally signs at the conclusion of the Conference. For larger regional

and global conferences. agreements usually "remain open for signature" for an extended

period of time at one or more locations. Sometimes agreements remain open for

signature indefinitely. Signature is not a trivial step because parties unhappy with the

adopted text of an agreement may refuse to sign it. This is especially true when a text

is adopted by majority vote rather than by consensus. 190 Once a party signs an

agreement it must according to the Vienna Convention on the Law of Treaties -- refrain

from activities that would defeat the objectives of the agreement. There are no sanctions

prescribed for countries that violate this requirement. The Vienna Convention provides

that an agreement take effect, or enter into force, when a sufficient number of parties

have agreed to be bound by it. For most multilateral agreements, the parties can choose

to have the agreement enter into force when a fraction of the states have indicated that

their governments have ratified it. For regional agreements involving a relatively small

number of parties, agreements usually enter into force when all parties have ratified it.

Large regional and global agreements typically set a minimum number of required

ramifications. Once the minimum number of ratification is achieved, the agreement

enters into force only for those parties who ratify. There is no requirement, according

to the Vienna Convention on the Law of Treaties, that a minimum number of countries

participate in a treaty making effort. Multilateral agreements can be modified after they

enter into force. Unless a treaty stipulates otherwise, the general rule is that all

signatures must be notified of any proposed modifications. The parties then have the

right to participate in modification negotiations, and to sign any subsequent agreement.

189

190

Article 27 of the Vienna Convention on the Law of Treaties.

For a full discussion, see Lawrence E. Susskind, Environmental Diplomacy: Negotiating More Effective Global Agreements (New York: Oxford University Press, 1994), p.26.

'111\

Although most multilateral agreements follow this pattern, there are exceptions-. Some

modifications may be binding on all parties to the original agreement. In such cast-s, a

super majority vote is usually required for the modification to be adopted. 191

Within the framework of the CWC, the Organization for the Prohibition of Chemical

Weapons (OPCW) and/or the United Nations (UN) Security Council may adopt

decisions, the application of which within the sphere of the internal law of states may

become a problem. Special constitutional problems and posed by treaties establishing

international organizations. 192 As these organizations have their own decisior-making

processes and create legal orders of their own, the impact which the norms and

decisions emanating from them have on the internal order is to be determined. There

are several ways to resolve it. There may be no direct application of the decision: the

implementing norms must be adopted at the national level. As will be shown, this is the

normal situation under the CWC. Where, however, the international decision requires

direct internal application by the member states,· there are two possibilities. 193 The

first one is to construe the effect of the decision in the same way as the effect of the

treaty. That would mean that the decision is internally applicable where the treaty is,

and where the content of the decision is self-executing. The second possibility is that

the binding decision of the international organization becomes as such the law of the

country. In this case, adherence to the international organization really constitutes a

transfer of public authority from the state to the organization. We are then in the

presence of what is called a supra-national organization. If we look into state practice,

the latter solution is adopted ·in a few organizations providing for a high degree of

integrative between the members, such as the European Union. This option, in many

European States, has special constitutional foundations. 194 As to decisions of the

Security Council, in particular embargo decisions, as a rule,. implementing law-making

191

192

19]

194

For example, the Vienna Ozone Convention allows any party to propose new amendments. It requires the parties to make "every effort" to reach agreement by consensus, but if they fail, the amendment may be adopted "as a last resort" by a three-fourths majority vote of the parties at the Conference. For a complete discussion, see also Vienna Convention for the Protection of the Ozone Layer-- the treaty was signed on 22 March 1985.

For more details, see Schreuer, C., "Internati~nal Law in Municipal Law: Law and Decisions of International Organizations and Courts", in R. Bernhardt, EPIL, voi.IO, p.262.

For a detailed discussion, see Michael Bothe, n.l78, pp.543-568, especially p.546.

For a summary of this constitutional practice in Europe, see B. Beutler, R. Bieber, J. Pipkorn and J. Streil, (eds.). Die Europaische Gemeinschaft (3rd e(1.), (Baden-Baden, 1987), p.9l.

,., ....

is necessary. In the light of these. problems concerning the· internal application of the

decisions of international organizations, the question must be analyzed very carefully

in relation to decisions adopted by an organization in the framework of the ewe.

It would appear that decision powers of the OPCW one only in a few cases, if any, if

a kind where they must have some immediate internal effect. The general approach

adopted by the CWC concerning the relationship between the Organization and the

member states is that of co-operation and dialogue, not that of the unilateral exercise

of a kind of supranational authority by the Organization. This is true even for challenge

inspections, which may be considered the most unilateral ekment of the OPCW

functions. Obligations to grant access rather flow directly from the Convention, not

from a decision of the Organization (either the Executive Council (EC) or the Director

General of the Technical Secretariat (TS). The most important relevant decision powers

relate to non-compliance. The Conference of States Parties (CSP) 1c

5 is entitled to

"take the necessary measures to ensure compliance with (the) Convention and to redress

and remedy any s!tuation which contravenes the provisions of (the) Convention, in

accordance with Article XII" . Whether this includes any power to impose upon a state

specific obligations regarding its internal order (e.g~, closing down a factory, punishing

an individual for forbidden activities), is far from clear. It is not expressly mentioned

in the Convention, but it also not excluded. As to the EC, where it reaches the

conclusion that "further action may be necessary" with regard to non-compliance, "it

shall take the appropriate measure to redress the situation and to ensure

compliance" .196 In a rather indirect way, the Convention suggests that this may

involve a binding decision: Under Article XII, paragraph 2, the CSP may restrict or

195

196

. '

See Article VIII, Para 2l(K) of the CWC. It says that "The Conference shall: (k) Take the necessary measures to ensure compliance with this Convention and to redress and remedy any situation which contravenes the provisions of this Convention, in accordance with Article XII". This article comes under the powers and functions of CSP. ·

Article XII of the CWC is quite. pertinent here to mention. It deals with 'measures to redress a situation and to ensure <:ompliance, including sanctions'. Art.XII contains 4 paras. In it, para 3 of Article XII indirectly mentions the role of diplomacy in recommending collective measures to State Parties in conformity with international law.

See Article IX, Para 23 of the CWC. It says that: "If the Executive Council reaches the conclusion, in keeping with its powers and functions, that further action may be necessary with regard to paragraph 22, it shall take the appropriate n~easures to redress the situation and to ensure compliance with this Convention, including specific recommendations to the Conference. In the case of abuse, the Executive Council shall examine whether the requesting State Party should bear any of the financial implications of the challenge inspection".

312

suspend a party's "rights and privileges under the Convention" where that party has

been requested by the EC to take measures to redress a situation and where it has not

fulfilled this request, until that party "undertakes the necessary action to conform with

its obligations under (the) Convention". The "obligations" referred to in this phrase may

well be understood as being obligations created by the request of the Council. If this is

a correct interpretation, then the question of the effect of the Council's request in the

internal legal order of the requested State arises. Although these powers of the OPCW

are not of a supra-national character, it seems appropriate that national legislation makes

some provision on national implementation of OPCWs' decision of the kind just

discussed. This, however, is an aspect which has been completely neglected by national

implementation legislation adopted so far.

Treaty-Implementation in Indian Context

An examination of effectuation of international law in the Indian municipal legal order

at once involve_s both a doctrinal perception and a functional assessment of the role a

municipal legal under plays in the implementation of international law through its

normative regime as well as its authoritative institutional mechanisms. 197 Further

elaboration on that reflects the reality of the decentralized structure of the international

community points to the formidable difficulties in the implementation of international

law, both at the international as well as the national level. In th~ case of the CWC, it

sets forth much more than the prohibition of use. It also prohibits development and

stockpiling and requires destruction of existing stockpiles (all of which are a logical

consequence of a total ban on use). It prohibits the use of riot control agents as a

method of warfare (to close a near loophole). Its non-proliferation element (the Article

I obligation not to "assist, encourage or induce, in any way, anyone" and Article VI

obligations concerning dual-use chemicals) prescribes trade .restrictions against States

not Party (implying export/import controls). Its extensive verification regime involves

intrusion into State sovereignty by eliminating the right of States to refuse entry to

197 An adumbration of a perception of the role of !he municipal legal order in giving effect to international law, and an overview of the framework of law and practice of India in this respect, see V.S. Mani, "Effectuation of International Law in the Municipal Legal Order: The Law and Practice in India", Asian Yearbook of international Law, vol.5, 1997, pp.l45-174.

international inspectors. 198 Article XXII 199 permits no reservations to the Articles

of the Convention. thus making these non-derogable norms. To what extent are those

additional treaty obligations developing the content of customary international law?

Much will depend on the extent to which the CWC is considered to be a law-making

treaty. 200 The process for the development of custom under or treaty has been stated

by the International Court of Justice in the North Sea Continental Shelf cases201 in t!le

following terms:

... a rule has come into being since the Convention, partly because of its own impact, partly on the basis of subsequent State practice, and ... this rule, being_ now a rule of customary international faw binding on all states ... " (Para.70) .

.. . involves treating that Article as a norm-creating provision which has constituted the foundation of or has generated a rule which, while only conventional or contractual in its origm, has since passed into the general corpus of ii'.ternational law, and is now accepted as such by the opinio juns, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is uo doubt that this process is a perfectly possible one and does from time to time occur: It constitutes indeed one of the recognized methods by which new rules of. customary i.nternationallaw ma:x be formed. At the same time this result is not lightly to be regarded as naving been attained". {Para. 71).

The Court indicated criteria for state practice forming a rule of customary international

law to be: (a) the amount of time the rule has been adhered to; (b) the number and type

of states adhering to the rule (especially states. having an interest affected by the rule);

and (c) uniform state practice. In this respect it stated:

198

i99

200

201

... Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within th~ period in question, short though it might be, State practice, including th2t of States whose interests are specially affected, should have been boL1 extensive and virtually uniform in the sense of the provision invoked -­and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation IS involved. (Para. 74).

For a detailed discussion, see Rodrigo Yepes-Enriquez and Lisa Tabassi (eds.), Treaty Enforcement and International Cooperation in Criminal Matters -- With Special Reference to the G'hemical Weapons Convention (The Hague: Organization for the Proliibition of Chemical Weapons, 2002).

See Article XXII of the CWC. It states that, "The Articles of this Convention shall not be subject to reservations. The Annexes of this Convention shall not be subject to reservations incompatible with its object and purpose".

For a detailed understanding See I. Brownlie, Principles of Public International Law (London: Oxford University Press, 1998), pp.l1-13:

See North Sea Continental Shelf Cases (Germany Vs. Denmark; Germany Vs. the Netherlands), 1969 ICJ Reports 3.

314

Practice under the ewe has undoubtedly been short (since 1997), however, the number

of States is large and includes all declared che~pical weapons possessor ~tates and nearly

all States having chemical industry relevant to the Convention. As consensus-building

and interpretation continues, the decisions of the organs of the treaty-implementing body

(the OPCW) are drawing state practice into greater uniform:.ty. 202 Over time this

aspect may become the most significant feature. Under the treaty obligations, the CWC

bars the production, acquisition, stockpiling, transfer and use of chemical weapons.

The functions of law-making, law-implementation and adjudication, which are usually

exercised by centralized institutions in the municipal legal order, are decentralized on

the international plane, leaving individual states to perform these functions. The basic

provisions of the 1950 Constitution of India, by virtue of which international law

becomes implementable through municipal law of India art! Articles 51 and 372.203

Article 372 provides that "Subject to the other provisions of the Constitution, all the law

in force in the territory of India immediately before the commencement of this

Constitution, shall continue to be in force therein until altered or repealed or amended

by a competent legislature or other competent authority". Explanation I to Article 372

clarifies that the expression "law in force" in this article shap include a law "passed or

made by a legislature or other competent authority in the territory of India before the

commencement of this Constitution and not previously repealed, notwithstanding that

202

203

For more details and information, see L. Tabassi (ed.), OPCW: The L~gal Texts, 1999, pp.ll?-206.

See the ConstiMion of India, Article 51 deals with international peace and security. It says t tat:

"The State shall endeavour to -

(a) Promote international peace and security;

(b) Maintain just and honourable relations between l)ations;

(c) Foster respect for international law and treaty obligations in the dealings of organized people with one another; and

(d) Encourage settlement of international disputes by arbitration.

Article 372 states that the "continuance in force of existing laws and their adaptation". Art.372 (2) says that: "For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may be order make such adaptations and modifications of such law, wheilier by way of repeat or amendment, as may be necessary or expedient and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law". ·

Article 372 also consists of four explanations. It mainly relates to "law in force" in India and territorial effect.

315

it or parts of it may not be then in operation either at all or in particular areas" . 204

Besides these articles, the Constitution of India contains provisions relating to foreign

relations law. Under Article 73 of the Constitution of India, the executive power of the

union (the Central Government) extends to:

"(a)

(b)

the matters with respect to which Parliament has power to make laws; and

The exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement. "

The executive power is, of course, subject to the provisions of the Constitution. 205

The legislative power under the Indian Constitution is shared by Parliament and State

Legislatures "subject to the provisions of this Constitution". 206 The Constitution

enumerates three lists of subjects - the Union List, the State List and the Concurrent

204

205

206

See Article 372 of the Constitution of India. The principal implications of Article 372 for the effectuation of international law/treaty through the realm of Indian municipal law are as follows: First, the carrying forward of the law as it stood at the commencement of the Constitotion on 26 January 1950 shall be "subject to the other provisions of this Constitution". While the Constitution may be amended pursuant to the procedures laid down in the Constitution itself (such as in Article 368), the pre-Republic law, to be effective after the commencement of the Constitution must pass the test of compatibility with other provisions of the Constitution as they stand at the material time when the test is being applied. This requirement ensures the supremacy of the Indian Constitution within the municipal law, vis-a-vis the accumulated body of law previously applicable in the territory that now constitutes the Republic of India. Second, the term "all the law", read with explanation, includes common law, other customary law of India and the statute law in force at the time of commencement of the Constitution. Third, the expression "all the laws in force" means that the law, to be eligible for continuance in operation, must have been in force immediately before 26 January 1950. Fourth, "In the territory oflndia" encompasses not only the territory of the former Dominion of India but also the territories of Indian rulers under British suzerainty (see the General Clauses Act, 1897, Section 3(213). Fifth, "immediately before the commencement of this Constitution" means that international law as it stood incorporated in the Indian common law and statute law as at 2S January 1950 shall continue to be in force through 26 January 1950 until altered by the legislature or other competent authority. Finally, while the phrase "immediately, before the commencement of this Constitution" has the effect of "freezing" the international customary law as incorporated in the common law as it stood on the critical date, the Indian Courts are likely to be moved by the principles of "justice, equity and good conscience", and even "defreeze" it by recognizing the inane evolutionary character of international law, particularly taking infb account their own constitutional responsibility under Article 51 and the responsibilities of the executive and the legislature under the other provisions of the Constitution, ~uch as Article 73 and 253. Evidently, the term "other competent authority" in Art1 icle 372 includes the courts in performance of their basic law-finding and law-declaring functions.

See also, Chandrasekhara Rao, The Indian Constitution and lfltemational Law (New Delhi: Taxman Publications Pvt. Ltd., 1993); and for detailed discussion on the above-mentioned aspects, see V.S. Mani, n.l1], pp.l53-55.

Article 256 of the Constitution of India seeks to ensure that the executive power of States (provinces) conform to the laws made by Parliament; Article 257 seeks to ensure that it does not impede or prejudice the executive power of the Union. Article 258 provides for delegation of executive power from the Union to States in certain cases.

See Article 2<:5 of the Indian Constitution. It drals with the extent of laws made by Parliament and by the Legislature of States.

316

List - in respect of which the legislative power may be exercised, 207 provided that the

legislative power of Parliament overrides that of the State legislature in respect of the

Concurrent List. 208 A number of items on the Union List relate to India's external

relations. 209 The effect of Article 73 of Constitution of India is that the executive

power of the Uni.on (the Central Government) encompasses the whole of the Union List

and the Concurrent List particularly the items mentioned in footnote 169, directly

relevant to external relations, subject of course to the other provisions of the

Constitution, and also any law made by Parliament. The Parliament of India made "the

Chemical Weapons Convention Act, 2000" on 28th August, 2000. 21° Chapter I of it

provides "Preliminary" aspects related to- short title, extent, applicati,)n and

commencement. 211 As required by the CWC, India completed procedures for national

implementation measures with the notification of the Chemical Weapons Convention Act

207

208

209

210

211

See Article 246 and the Seventh Schedule of the Constitution. Article 246 is related to the subject-matter of laws made by Parliament and by the Legislatures of States.

See Article 254 of the Indian C~>nstitution. It states that "inconsistency between laws made by Parliament and laws made by the Legislatures of States".

See, the Seventh Schedule of t)le Constitution of India. It contains three lists. In Union List, the items include items 1 (Defence of India), 2 (Armed forces of the Union), 3 (Deployment of forces), ("Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India"), 10 ("Foreign affairs, all matters which bring the Union into relation with any foreign country"), 11 ("Diplomatic, consular and trade representation"), 12 ("United Nations"), 13 ("Participation in international conferences, associations and other bodies and implementing of decisions made therwf"), 14 ("Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries"), 15 (War and Peace), 16 (Foreign jurisdiction), 17 (Citizenship, naturalization and aliens), 18 (Extradition), 19 (Admission into, and emigration and expulsion from India; passports and visas), 21 (Piracy and crim.:s committed on the high seas or in the air; offence against the law of nations committed on land or the high seas or in the air; 25 (Maritime shipping and navigation), 29 (Airways, aircraft and air navigation), 31 (Post and Telegraph, Telephone, Wireless, Broadcasting and other likeforms of commimication), 37 (Foreign loans), 41 (Trade and Commerce with foreign countries), and 57 (Fishing and Fisheries beyond territorial waters). By virtue of Item 97 read with Article 248 (Residuary powers of legislation by Parliament), Parliament retains residuary legislative power in respect of "any matter not enumerated" in any of the three Lists.

See, The Gazette of India Extraordinary Part II - Section 1: With gratitude to Legislative Department, Ministry of Law, Justice and Company of Affairs, Government of India, the 28th August 2000.

See Chapter I. Part-I of the Chemical Weapons Convention Act, 2000: It reads as follows:

(1) This Act may be called the Chemical Weapons Convention Act, 2000.

(2) It extends to the whole of India, and it shall apply to:

(a) Citizens of India outside India; and

(b) Associates, branches or subsidiaries, outside India of l:Ompanies or bodies corporate, registered or incorporated in India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette and appoint; and different dates may be appointed for differ :nt provisions of this Act.

317

on 28 August 2000, thereby providing statutory powers for the National Authority in

implementing the Convention.212 Chapter II of the Indian Act deals with the

establishment of National Authority, powers and functions of National Authority,

N a tiona! Authority to submit initial, annual and other periodical declarations to

Organization, appointment of enforcement officers, power of National Authority to issue

directions, power of Central Government to constitute Committee and Power of

National Authority to call for information, etc.

Two aspects of the relationship between treaties and Indian Constitution may be

considered, namely treaty-wt~a:king and treaty-implementation. Following the

Commonwealth practice, treaty-making India still continues to be regarded as a function

falling within the executive powers of the Union, by virtue of Article 73 read with

Article 246 and item 14 of the Union List (Entering into treaties and agreements with

foreign countries and implementing of treaties, agreements and Conventions with

foreign countries) but it has not done so. Hence the continuance of the Commonwealth

practice in treaty-making in India. The point to note, however, is that there is nothing

in the Constitution preventing Executive from deviating from the Commonwealth

practice so long as such deviation is not inconsistent with any of the provisions of the

Constitution. 213

The Government of India has made the following statement on the treaty-making power

of the executive in India:

212

213

Parliament has not made any laws so far on the subject [of treaties] and until it does so, the President's power to enter into treaties remains unfettered by any internal constitutional restrictions. In practice, the President does not negotiate and conclude a treaty or agreement himself. Plenipotentiaries are appointed for this purpose and they act under full

See, the Chemil:al Weapons Convention Act, 2000 by Governmem of India. In Chapter II, Part 6 (I) says:

"(I) For the purposes of this Act, the Central Government shall establish, by notification in the Official Gazette, an Authority to be known as the National Authority for implementing the provisions of the Convention which shall consist of a Chairperson and such number of Directors as may be appointed by the Central Government.

(2) The Central Government may appoint officers and such other employees to the National Authority as it thinks fit for the purposes of this Act".

This point is material to Article 46 of the Vienna Convention on the Law of Treaties, 1969, whereby a State's consent to a treaty may be invalidated on ground of a manifest violation of a rule of its internal law of fundamental importance.

318

powers issued by the President. It is however, the President who ratifies a treaty. 214

This is in line with the British, and hence the Commonwealth, practice. The executive

claims the prerogative to decide whether or not to make and ratify a treaty. The

legislature comes into picture only if the treaty calls for any legislation to facilitate its

implementation within the country or any specific allocation of financial resources. This

practice has its origin in the British Constitutional Convention where by the Crown is

not only the executive, but also the fountain-head of law and justice. In other words,

legally there is a mythical fusion of the three organs of government under the Crown.

Apart from the British heritage, other justifications for the executive discretion to decide

on the participation in treaties include: (a) the cabinet accountability to Parliament, and

(b) the mandatory requirement of Parliamentary approval implicit in adoption of a piece

of enabling legislation. Unfortunately, both these justifications do not adequately fulfil

the need for prior parliamentary approval for assumption of international obligations by

the Union Government binding the country. The cabinet accountability comes into play

only after the event, i.e., after the country has been committed to treaty obligations.

The government of the day could lose the confidence of Parliament, but a change of

government does not per se terminate or alter the international ob.igations already

accepted by the outgoing government. The termination (if not provided for in the treaty

itself) or alteration of treaty already in force may have to be renegotiated i.e., it is

subject to further agreement of the parties and may carry with its special costs in terms

of practical politics. The other requirement of parliamentary approval through enabling

legislation is clearly subject to two limitations. 215 One, it arises only after the

executive has committed the country to a treaty and therefore, on the international pbne

the treaty obligations will have full force regardless of whether or not Parliament enacts

a piece of enabling legislation. Two, not all treaties may require enabling legislation,

214

215

The Constitution of India (1950) draws on distinction between treaty making and treaty implementing power, and in accordance with the practice prevailing in Commonwealth countries vests the treaty making power in the executive. The Parliament has power to makt laws for implementing not only international obligations of the Union arising out of treaties, agreements, and Conventions, but also decisions of a11y international conference, association or other body. And such implementing legislation is not limited tJ subjects normally within federal legislative competence. For a detailed understanding in this, see Law and Practice Concerning the Conclusion of Treaties (New York: United Nations Legal Series, 1953), p.6:;, quoted in C.G. Raghavan, "Treaty Making Power under the Constitution oflndia", in S.K. Agrawala, ed., Essays on the Law of Treaties (New Delhi, 1972), p.217-250, particularly p.219. See also, Lok Sabha Secretariat, Parliament and International Treaties (New Delhi: Lok Sabha Secretariat, 1976).

For a detailed discussion on it, sec V.S. Mani, n.197, p.162.

319

and therefore, where there is no need for enabling legislation, Parliament will have little

chance of even discussing the pros and cons of the treaty, even if such a debate may be

of mere academic interest. In other words, the current practice whereby the executive

exercises absolute discretion in committing the country definitively with respect to a

treaty is clearly an anachronism and out of step with the principles of Parliamentary

supremacy in a democracy in which the people are supposed to govern themselves

through their elected representatives.

Thus the Union executive enjoys somewhat unbriddled power in the conclusion of

treaties and in deciding the extent to which India should be bound by a treaty. 216

Implicit in this power is the duty to carry out the obligations under the treaty both

within and outside the realm of Indian municipal law. Steps must be taken to

incorporate the treaty into the body of the Indian domestic law, should such

incorporation be necessary for the effectuation of the treaties in that realm. Indeed, it

is the responsibility of the executive to see that there is no time gap between assumption

of international obligations by India and their implementation as the state is expected,

pursuant to Article 51 of the Constitution, to foster respect for treaty obligations (under

Article 73 executive powers are subject to this and other provisions of the Constitution).

At the same time it must also be noted that what cannot be implemented, for

constitutional or other reasons, should not be undertaken by the executive as a feat of

its prerogative. India, though in the august company of many other countries, does not

have an enviable record of prompt ratification of treaties which it has arduously

negotiated, or of their prompt implementation through domestic legislation, despite the

often professed policy to the contrary. One of the reasons for this appears to be the

endemic lack of coordination among the various government departments each of which

functions like a monolithic leviathan.

216 It is, of course, common knowledge that the reservations made by a state while becoming a party to a treaty, to be valid, must be compatible with the object and purpose of the treaty. See Article 19 of the Vienna Convention on the Law of Treaties, 1969. At times, however, a reservation made in respect of domestic law may be invalidated by the developments in domestic law of the reserving country. For instance, with reference to the right of compensation for victims of unlawful arrest or detention in violation of the Covenant on Civil and Political Rights, 1966, India's Instrument of Accession to that treaty declared that there was no such right enforceable under the Jndian legal system (see 20 IJIL, 1980, 118, para II). But this has been countermanded by judicial rulings under Article 21 of the Constitution, whereby there is now a right to compensation for unlawful arrest and detention. See for instance the Rudul Shah case, Supreme Court Cases (SCC) (1983) 4, p.141; Bhim Singh, Vs. J&K, AIR 1986 SC 494; Rajalakshmi Vs. UTofPondicherry, SCC (1992) Supplement 2 p.27; Saheli Vs. Commissioner of Police, Delhi, AIR 1990 SC 5B.

320

Article 253 of the Constitution of India provides as follows:

Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of. the territory of India for implementing any treaty, agreement or ConventiOn, with any other country or countries or any decision made at any international conference, associatio:1 or other body. 217

Additionally, Article 260 envisages making of a law to regulate the exercise of foreign

jurisdiction by the government of India, pursuant to an agreement with the Government

of any territory, not part of India. 218

P. Chandrasekhara Rao, on the basis of case-law, identifies the following categories of

treaties requiring constitutional amendments or legislation by Parliament:

i. Treaties involving cession of territory;

ii. Treaties whose implementation requires addition to, or alteration of, the existing law;

iii. Human rights Covenants and other instruments. 219

Indeed, no exhaustive enumeration of the various types of treaties requiring

Parliamentary legislation is possible. As a general rule, as Justice Shah observed in

Maganbhai Ishwarbhai Patel vs. Union of lndia: 220

"The power to legislate in respect of treaties lies with the Parliament under Entries 10 and 14 of List I of the Seventh Schedule. But making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or other or modifies the laws of tlie State. If the rights of the citizens or others which are justiciable are not affected, no le&islative measure is needed to give effect to the agreement or treaty. '

P.C. Rao rightly notes that although India became a party to a number of treaties, "the

number of treaties which have been incorporated into Indian law, either fully or partly,

217

218

219

220

It is interesting to note, from the point of view of international law, 'that this provision uses the phrase "treaty, agreement or Convention", and item 14 of the Union List repeats this. Item 14 deals with "entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries. It perhaps means a "treaty, however named", and if so construed, Article 253 would be in harmony with Article 1(a) of the Vienna Convention on the Law of Treaties, 1969, embodying the definition of a treaty.

See Article 260 of the Constitution of India. It stipulates that: The Government of India may by agreement with the Government of any territory not being part of the territory of India undertake any executive, legislative or judicial functions vested in the Government of such territory, but every such agreement shall be subject to, and governed by, and law relating to the exercise of foreign jurisdiction for the time being in force". See also Foreign Jurisdiction Act 1947, a pre-independence enactment.

For details, see P.C. Rao, The Indian Constitution and International Law (New Delhi: Taxman Publications, 1993), pp.l37-48.

See AIR 1969 SC, p.783.

321.

is small". 221 On an analysis of nineteen such selected statutes incorporating treaties,

Rao finds that three different legislative methods have been used by Parliament, namely:

1.

2.

3.

Making provisions in compliance with the relevant provisions of the treaties without enacting the treaty provisions;122

Annexing to the statute in a schedule to it, thos1frovisions of the treaty which required enforcement under Indian law; 2 or

Reproducing the whole of the treaty in the Schedule to the Statute. 224

It is needless to say that the first two methods are likely to play havoc with the process

of effectuation of treaty obligations through a_n Indian law in so far as they encourage

subjectivity and selectivity in identification of treaty provisions requiring statutory

incorporation. 225 They also defeat the application of the basic rule of interpretation of

treaties that "a treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context and in the light of its

object and purpose" ,226 insofaras the truncated reproduction or municipal law redraft

of the treaty provisions may fail to assist the judiciary seeking to implement the treaty

through the statute law, constrained as it is to be bound by the authority of the

Legislature. 227 These are the entire aspects of treaty-making and treaty-implementation

and its awareness while implementing the CWC in India.

National Authority, Chemical Weapons Conrention: Implementing Agency in India

India established the National Authority, Chemical Weapons Convention under the

Chemical Weapons Act, 2000. It works under the Cabinet Secretariat. The function of

the Cabinet Secretariat is to provide Secretarial assistance to the cabinet and its various

committees. Its responsibilities include preparation of agenda for the meetings of the

cabinet, providing information and material necessary for its deliberations, keeping a

221

222

2B

224

225

227

See P.C. Rao, n.219, p.149.

For instance, the United Nations (Security Council) Act, 1947, the Merchant Shipping Act, 1958; the Tokyo Convention Act, 1975; the Anti-hijacking Act, 19E2; the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982. For an examination of the last three enactmnts, see V.S. Mani, "Aviation Safety, International Terrorism and the Law", IJ/L, vo1.12, 1992, pp.1-5\l at40-8.

E.g., the Diplomatic Relations (Vienna Convention) Act, 1972.

E.g., the Arbitration (Protocol and Conventi01~) Act, 1937 and the Geneva Conventions Act, 1960.

This is indeed besides the point that P.C. Rao makes regarding the municipal Jaw language and trelty obligations, see P.C. Rao, n.ll~. p.l51.

See, Article 31 of the Vienna Convention on the Law of Treaties, 1969.

See, e.g., V /0 Tractor export Vs. Tara pore and Co., AIR, 1971, SC 1; see also P.C. Rao, n.219, pp.173-6.

record of the discussions in the cabinet and of the decisions taken there, circulation of

memoranda on issues awaiting cabinet's approval, circulation ofthe decisions to all the

ministries and preparation and submission of monthly summaries on a large number of

specified subjects to the Cabinet. It also oversees the implementation of the cabinet

decisions by the concerned ministries and other executive agencies. 228 The Cabinet

Secretariat functicns as the prime coordinating agency in the Government of India.

Several cases are brought before the Cabinet Secretariat involving the President, Prime

Minister, varicus ministries and the Parliament, which it provides aid, advice and

assistance. Few aspects in this respect are relevant here such as cases involving

negotiations with foreign countries on treaties agreements etc.; proposals for sending

delegations of persons abroad in any capacity; cases of disagreements among ministries;

and cases which the President or Prime Minister may require to be put before the

Cabinet. The Cabinet Secretariat functions under the leadership of the Prime Minister

who is its minister-incharge at the political level.

Cabinet Secretariat's administrative head is the Cabinet Secretary. He/ she is drawn from

the seniormost officers of the Indian Administrative Service. A few words may be said

of the qualifications required for this most important civil servant of the country.

Gopalaswamy Ayyangar had this to say on the subject:

He [the Cabinet Secretary] should be an administrative officer of the highest rank, selected for the office for his special qualities of tact, energy, initiative, and efficiency and he should be entrusted as head of the Cabinet Secretariat with the positive function of securing coordination as well as timely and effective action by all de,Partments of the Government of India in all matters in .which the Cab met as a whole or the Prime Minister is interested. He should be a person commanding the respect and confidence of all ranks of the permanent services. 229

Below the Cabinet Secretary, there are three secretaries in the Cabinet Secretariat. 230

It is pertinent with respect to the CWC implementation aspects. They head three wings . .

respectively: Security, Coordination and the Research and Analysis Wing (RAW). The

RAW is responsible for collation of external intelligence. The Secretary of the RAW

also works as Director-General (Security) and heads Special Frontier Force and

Aviation Research Centre (ARC). The Secretary (RAW) is assisted by Special Secretary

228

229

230

For detailed discussion on Cabinet office in the UK, see S.8. Khera, The Central Executive (New Delhi: · Orient Longman, 1975), p.177.

See, R. Dwarkadas, Role of Higher Civil Service (Bombay: Popular, 1958), p.41.

For more details, see Ramesh K. Arora and Rajni Goyal (eds.), /,1dian Public Adlilinistration: Institutions and Issues (2nd edn.) (New Delhi: Wishwa Prakashan, 1995), pp.136-37.

323

(RAW), Joint Secretary (RAW), Director (SSB), Director (ARC) and Inspector General

(SFF). hence, the Cabinet Secretariat is an extremely important organ of Government

of India. This is the structure of the Cabinet Secretariat.

Related to decision-making processes at the apex level in India, the Prime Minister's

Office (PMO) should be mentioned. It is an ~xtra-constitutional institution that has no

mention in the Indian Constitution. Most of the authority of the PMO has emanated

from its informal influence by virtue of its proximity to the Prime Minister. However,

it was given the status of a Department under the Government of India Allocation of

Business Rules, 1961. The PMO is headed by the Secretary to the Prime Minister, who

is now designated as the Principal Secretary to the Prime Minister. In organizational

hierarchy of the office, there are joint secretaries and directors. Joint Secretary III looks

after the Ministries of External Affairs, Defence and the Department of Atomic Energy.

The distribution of work is not a permanent one and the Prime Minister may modify it

according to changing needs. In contemporary times, the PMO has virtually become the

"think tank" of the Prime Minister. The idea behind its creation was to leave the Prime

Minister with enough time to concentrate on major policy decisions by processing all

the proposals that are sent to him. Its importance increases because the Prime Minister

is the coordinator of the Cabinet. Due to its proximity to the Prime Minister, it plays

an influential role in the cabinet activity as well. Although the External Affairs Ministry

is a regular and large ministry, in reality, it is the Prime Minister, in consultation with

his office and the ministry who designs and guides the foreign policy of the nation. 231

In sum, the PMO is growing from strength to strength under different Prime Ministers

over the years.

National Authority, Chemical Weapons Convention was set up by a resolution of

Cabinet Secretariat dated 5th May 1997 to fulfil the obligations enunciated in the CWC

initially signed by 130 countries in a conference which concluded on 14th January 1993

for the purpose prohibiting of th~ development, production, execution, transfer, use and

stockpiling of all chemical weapons by Member States is a non-discriminatory

process. 232 To fulfil its obligations, each State Party has to designate or establish a

231

2J2

For further details, see Sarla Mallik, The Prime Minister of India: Powers and Functions (Pillai: Chinta Prakashan, 1984), pp.270-82.

See, Cabinet Secretariat website at <http://cabsec.nic.in/develop.htm> accessed on 20 February 2004.

National Authority to serve as the national focal point for effective liaison with The

Hague-based Organization for the Prohibition of Chemical Weapons (OPCW) and other

States Parties and hence the National Authority, Chemical Weapons Convention under

the administrative control of the Cabinet Secretariat was set up. The National Authority

is headed by the Chairperson who is in the rank of Additional Secretary to the

Government of India and is supported by a suitable technical secretary to look after the

various functions. A High Level Steering Committee under the Chairmanship of the

Cabinet Secretary with Secretary (Chemicals and Petrochemicals), Foreign Secretary,

Secretary, Defense Research and Development, Defence Secretary and Chairman, the

National Authority as its other members would oversee the functions of the National

Authority. The National Authority, Chemical Weapons Convention is responsible for

implementation of the Chemical Weapons Convention Act, liaison with the CWC and

other State Parties, collection of data fulfilling of declaration obligations, negotiating

facility agreements, coordinating the OPCW inspections, providing appropriate facilities

for training national inspectors and industry personnel, ensuring protection of

confidential business information, checking declarations for consistency, accuracy and

completeness, registration of entitles engaged in activities related to the ewe etc. 233

National implementation measures are necessary because the CWC requires certain ..

results, but leaves states relatively free as to how they actually achieve these results:

233

234

235

Ibid.

There must be a National Authority for a number of purposes;234

Private persons must abstain from activities prohibited to States;235

See Article VII of the CWC, Para 4 says that "in order to fulfil its obligations under this Convention, each State Party shall designate or establish a National Authority to serve as the national focal point for effective liaison with the Organization and other State Parties. Each.State Party. shall notify the Organization of its National Authority at the time that this Convention enters into force for it".

Article VII, Para I of the CWC stipulates general undertakings. It states that:

I. Each State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention. In Particular, it shall:

(a) Prohibit national and legal persons anywhere on its territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited to a State Party under this Convention,including enacting Penal legislation with respect to such activity;

(b) Not permit in any place under its control any activity prohibited to a State Party under this Convention; and

(cJntinued ... )

325

There must be a flow of information for verification purposes;236

Confidential information must not leak;237

Onsite inspections must take place, which means inter alia the inspectors must have access to certain places as provided by the Convention;238

Certain transfers of chemical substances must not take place. 239

These results cannot be achieved without appropriate national implementation measures.

Article VII Para.l(a) of the CWC contains the basic obligation relating to national

implementation:

"Each State Party shall, in accordance with constitutional processes, adopt the necessary measures to implement its obligations under this Convention. In particular, it shall ... prohibit natural and legal persons anywh~re on i~s territf?ry or in any other plac~ under its )/,fnsdicti<?rz. as recognzzed by mternatwnallaw from undertakmg any actzvzty prohzblted· to a State Party under this Convention, includmg enacting penal legislation with respect to such activity ... "

In a way, this expresses a principle which is a matter of course. The so-called effect

utile rule is basic standard of interpretation. A treaty must be interpreted in a way which

gives its practical effects. 240 Thus, States must indeed see to it that the Convention has

those practical effects which it is required and supposed to produce.

The real question lies in the details. What measures are 'necessary'? This rrquires a

careful scrutiny for each provision. Some examples of necessary implementation

legislation are given below.

235( ... continued)

236

237

238

239

240

(c) Extent its penal legislation enacted under subparagraph (a) to any activity prohibited to a State Party under this Convention undertaken anywhere by natural persons, possessing its nationality, in conformity with international law".

See, in particular Article III of the CWC. It mainly covers declarations pertaining to chemical weapons, old chemical weapons and abandoned chemical weapons, chemical weapons production facilities, other facilities such as precise location, and riot control agents.

See Article VII, para 6 of the CWC. It says that, "Each Siate Party shall treat as confidential and afford special handling to information and data that it receives in confidence from the Organization in connection with the implt!mentation of this Convention. It shall treat such information and data exclusively in connection with its rights and obligations under this Convention and in accordance with the provisions set forth in the Confidentiality Annex".

For more details, see Article IV, Paras. 3 and 5 deals with systematic verification and providing access by State Party for verification and on-site inspection, respectively; Article V paras 3, 6 and 7 are generally related to Chemical Weapons Production facilities and verification; Article VI, paras.3-6 deals with "Activities not Prohibited Under the Convention" and "Verification Annex"; Article IX, paras 8 and 10 concerned with "Consultations, Cooperation and Fact-Finding".

See Article I, para I. It consists of "General Obligations". Article VI, p2.ra 2 deals with detailed procedures for the implementation along with Part IV (B) of the Verification Annex; Verification Annex, Part VI, Paras.l-6.

For details, see Bernhardt, R., Die Auslegung Volkerrechlicher Vertrage (Koln, 1963), p.96.

326

A few words must be said, however, on the supervision of national implementation.

According to Article VII, paragraph 5, each state shall inform thl.! Organization "of the

legislative and administrative measures taken to implement this Convention". This kind

of provision is not unusual. It can, for instance, also be found in the four Geneva

Conventions of 1949 for the protection of war victims and in Protocol I additional

thereto. Given the significance and importance of national implementing rule-making

for the effective application of the treaty, information on this rule-making is an

important element which assures the other parties that the treaty is indeed well applied.

This reporting thus creates credibility of treaty application. It is an important confidence

building measure. The purpose of confidence building is served still better if this

reporting is combined with some kind of review. The experience obtained or rather not

obtained under the relevant provisions of the Geneva Conventions have shown an

inadequate reporting record and an unwillingness of states to accept some kind of

review process. 241 It can only be hoped that under the CWC, where there is a stricter

international scrutiny of application anyway, reporting and evaluation of national

implementation becomes a matter of routine. A number of states have adopted their

implementation legislation together with thefr ratification decisions, or at least well

before the entry into force of the Convention. A comparative analysis of this legislation

points to a number of problems. In contrast thereto, certain states which have ratified

have not adopted any significant implementation measures -- a fact which might cause

practical problems for the operation of the ewe regime in relation to those

countries. 242

CWC First Review Conference

As a part of its fulfillment of obligations, from 28 April to 9 May 2003, the First

Chemical Weapons Convention Review Conference convened in The Hague. The

241

242

On the initiatives of the International Committee of the Red Cross concerning national measures to implement the Geneva Conventions and the Protocols additional thereto, see Revue internationale de La Croix-Rouge (RICR), vol.70, 1988, pp.127 and vol.73, 1991, pp.146. The question of a review process was in particular placed on the agenda of the Intergovernmental Expert Group for the Protection of War Victims, convened in 1994, by the ICRC, R!CR, vol.76, 1994, pp.465. The Final Declaration of the International Conference on the Protection of War Victims of 1st September 1993 stresses the need to adopt national measures of implementation without mentioning the question of control, RICR, vol.75, 1993, p.403. See also Fleck, D., "La mise en oeuvre du droit international humanitaire: problemes et priorites", RICR, vol.73, 1991, p.148; Dutli, M.T., "Mise en oeuvre du droit i11ternational humanitaire: Measures nationales", RICR, vol.76, 1994, p.506.

For details see Michael Bothe, n.l78, pp.549-50.

327

Conference followed after the Sixth anniversary of the entry into force (ElF) of the

CWC. The CWC came into being in 1997. In the backdrop of the First Review

Conference, it is pi!rtinent to examine the position paper and negotiation of India in the

CWC Review Conference.

India's position is to uphold the CWC in its entirety and reiterate our unresolved

commitment to its implementation in all its aspects. 243 The CWC is only universally

acceptable, multilaterally negotiated, non-discriminatory instrument with provisions to

eliminate comprehensively an entire category of weapons of mass destruction, namely,

chemical weapons, under effective compliance and verification within a specified time

frame. Given that this unique multilateral enterprise has been working for just 6 years,

it is most significant, in these trying times, for all of us to able to make the assessment

that the CWC has worked well, in terms of satisfactory compliance by its States Parties

and their commitment to fulfil their obligations. In the face of the challenges that lie

ahead, it is incumbent on us, the States Parties to the Convention, to put our heads

together in the right spirit to give a boost to this process. India hopes that this spirit will

animate our deliberations during the First Review Conference of the CWC.

The successful functioning of the OPCW is particularly gratifying to India because,

through the long and laborious negotiating days in the ad hoc working group on the

CWC in the Conference on Disarmament in Geneva there was no shortage of skeptics

who wondered whether such an elaborate and comprehensive mechanism like the CWC

would work effectively. In its relatively short existence, the OPCW has managed to

establish a sound mechanism to achieve the objectives and goals of the CWC. 244 It

remains engaged in furthering this goal, grappling with the problems that arise through

common endeavour and mutual accommodation. At the same time, the Technical

Secretariat and its staff of highly trained professionals, who have worked equally hard

at making the first six years of the OPCW successful.

244

Statement by Ambassador Shyamala B. Cowsik, Permanent Representative of India to the OPCW and Leader of the Indian Delegation to the First Review Conference of the CWC, 29 April 2003. India underlines and emphasizes on "The multilateral process for arms control and disarmament faces the most serious challenges".

See OPCW website, at < http://www.acronym.org.uk/cwc/ 03india.htm >, CWC Review Conference, 28 April-9 May 2.003.

328

One of the five declared possessor States Parties, India attaches great importance to the

elimination of chemical weapons and chemical weapons production facilities in

accordance with the prescribed timelines. So far as India is concerned, India has

successfully completed its fourth destruction ,campaign in February 2003, destroying

more than 40 per cent of India's declared Category I chemical weapons under OPCW

Verification. India hopes that the Technical Secretariat to explore ways of making the

verification regime even more efficient and cost effective. The slow progress in getting

international cooperation and assistance into full operational mode, with adequate

resources and programmes that act as a genuine magnet for non-State Parties and

signatory states to ratify the Convention. 245 The goals of international cooperation and

assistance are not merely to achieve universality for the CWC, but also to ensure that

States Parties that might not have a direct connection with the verification regime, are

nonetheless able to participate in a meaningful manner through ICA programmes that

fulfil the mandate provided in Article XI. 246 In the long run, the success of the CWC

will be judged not merely by the effective implementation of the verification regime,

but also by meaningful programmes under Article X and XI that contribute to the

economic and technological development of the developing countries.

India fully supports the declaration adopted at 13th NAM Summit in Kuala Lumpur in

February 2003 and would like to refer to the relevant portions of the Summit

Declaration relati.ng to the CWC,

"The Heads of State or Government of the States Parties to the Chemical Weapons Convention ... underlined the urgency of satisfactorily resolving the unresolved issues in the framework of the Or_ganization for the Prohibition of Chemical Weapons with a view to l?avmg the way for the effective, full and non-discriminatory implementatiOn of the Convention. In this context, they reiterated their call on the developed ccuntries to promote international cooperation through the transfer of technology, material and equipment for peaceful purposes in the chemical field and the removal of all and any aiscriminatory restrictions that are contrary to the letter and spirit of the Convention."

It is more than ten years since the CWC text was finalized in the Conference on

Disarmament in Geneva. One of the aspirations of the developing countries-- to benefit

from economic and technological development from the peaceful uses of chemistry -·­

was then sought to be addressed through the disbanding of ad hoc export control and

technology regimes like the Australia Group. To developing countries, the statement

245 Statement by Ambassador Shyamala B. eowsik, n.z.· 4- :.,

246 Article XI of the ewe broadly deals with "economic and technological development".

329

made by the representative of Australia at the conclusion of negotiations in the ·en on

6 August 1992, was both an expression of hope and a commitment that with· the

successful implementation of the CWC, ad hoc cartels such as the Australia Group

would be ended. However, in the ten years since that commitment was made, the Group

continues to e:r.ist and remains a visible symbol of the lack of implementation of all the

provisions of the CWC. In this context, India likes to make particular reference to

Article IX (e) of the CWC that unambiguously calls upon all States Parties to

"undertake to review their existing national regulations in the field of trade in chemicals

in order to render them consistent with the object and purpose of this Convention". The

situation needs to be addressed in a forthright manner by the Review Conference, if the

ewe is, in the coming years, to become universal and, more importantly' gain

universal acceptance.

India makes every effort to fulfil the obligations it has assumed under the Convention,

both in letter and in spirit. 247 Comprehensive Indian national legislation for

implementing CWC obligations is already in place. 248 The Indian National Authority

for the CWC, the functional body for interaction with the OPCW and also with other

concerned departments, agencies and chemicai·industry associations in India, plays an . achieve role in ensuring India's compliance with the CWC in all its aspects. The Indian

legislation provides for stiff penalties for individuals and companies that are

conclusively pr~ved to have violated any regulations set out in the national

implementing legislation. India's record in ensuring compliance with the provisions of

the CWC is second to none. When the CWC was negotiated, there was no common

understanding of the extent of danger posed by terrorism, as has since been accepted

in the UN Security Council resolution 1373. During the past year, there has been a

growing realization of the risks of terrorists getting access to weapons of mass

destruction and the consensus UNGA Resolution No.57/83 of 18 October, 2002, on

"Measures to pre·vent terrorists from acquiring weapons of mass destruction" articulated

this concern quite clearly. Within the specific context of a India's work in the OPCW,

there has been renewed focus on terrorism and the potential of terrorists accessing toxic

chemicals. Insofaras this threat has to be countered within the existing provisions of the

)47 See Statemellt by Ambassador Shyamala B. Cowsik. tl.2:+.3.

See, n.34 of 2000, The Gazette of India Extraordinary Part II, Se~,;tion 1, Legislative Department, Ministry of Law, Justice and Company Affairs, Government of India, New Delhi, 28 August 2000.

330

CWC, it is necessary to distinguish between the potential victims on the one hand, and

the perpetrators, in terms of non-state actors, on the other. India's commitment to

counter-terrorism cannot be overemphasized. However, there has to be a sense of

proportion in India's approach. We must realize that the unhindered implementation of

CWC, as it is, remains the necessary condition for the success of the drive against

WMD terrorism. Overzealous attempts to stretch the CWC-beyond its scope-- to cover

the terrorist threat will run the risk of suggesting obligations for States Parties which

are likely to be neither practical nor feasible, and which might entail unacceptal>le

burdens on the potential victims, whether in tem1s of States Parties or civil industry,

rather than on the non-State perpetrators. Such a venture might tum out to be self­

defeating.

The Review Conference needs to address this aspect as well, and come up with

solutions that make the wider community of States Parties more interested in the

activities of the OPCW. This can happen only when ICA programmes are tailored tc

provide meaningful support to the economic and technological development of sucli

countries. There also has to be an incentive by way of greater access to trade,

technology and chemicals for purposes not prohibited by the CWC. 249 There must be

a feeling amongst States Parties that the CWC provides them with a level playing field

for their economic and technological development, and for this feeling to be widely

understood, ad hoc regimes su~h as the Australia Group have to be disbanded.

The routine verification regime devised for the CWC has two components -- verification

of CW destruction by States Parties that have declared possession of CWs, ve:ification

of relevant chemical industries to ensure that toxic chemicals and their precursors are

not used for purposes prohibited by the Convention. Six years after Entry Into Force,

the verification regime under Article Vl has been operationalized for all scheduled

chemicals and declared facilities producing DOC/PSFs. It has worked well so far, in

spite of many important chemical industry related issues, dating back to the pre-ElF

days, remaining unresolved. India thus have pursued an ad hoc approach, basing

ourselves on commonsense. However, over the next five years, when chemical weapons

stockpiles diminish, with destruction activities being undertaken in all declared

249 See Statement by Ambassador Shyamala B. Cowsik, n:a..;4-3.

331

possessor states, industry inspections will gain in prominence. The speedy resolution

of the outstanding issues is key to ensuring a balanced and non-discriminatory

implementation of the Article VI inspections regime. In ensuring this, as in all other

aspects of India's work on CWC, have to be guided solely by the provisions of the

Convention. Their is thus a need for the Re\'iew Conference to strongly recommend

urgent consideration and early resolution of these issues by the Executive Council.

As a possessor state, India remains committed to fulfilling all its destruction related

obligations strictly in accordance with the Convention timelines. 250 By the time the

Second Review Conference meets in five years time, India should have completed the

destruction of its CWs and related facilities. Other State Parties cc-uld provide assistance

to such efforts, if they are in a ·position to do so, and for its part, India would be

willing to share its experience and expertise, if requested by other States Parties. In

doing so, India believes in the principle of collective and undiminished security for all

States Parties from the threat of chemical weapons. In the next five yea:s, the chemical

industry, verification regime will gather momentum. In addition to allocating additional

resources to these activities, India believes that these inspections must be undertaken

strictly in accordance with the provisions of the ewe, and relative to the risk the

concerned facilities pose to the object and purpose of the Convention. India believes that

inspection efforts under Article VI should be based only on information provided

voluntarily by States Parties declarations. 251 Further, when States Parties are call~d

upon to review potentially declarable facilities, it must be recognized that such a review

is an ongoing process, and that there will be a regular updating of declarations. The

national implementation of legislative measures is an important signpost to signal the

success of this Convention. India supports measures that would help States Parties seek

assistance from the Secretariat to put into· place such measures and fulfil their

obligations. However, care needs to be taken to create a fine balance, leading to a

realistic and acceptable burden for States Parties. More important, and for developing

countries in particular, such measures should be undertaken in tandem with sufficient

250

151

For a wide-ranging discussion, see Annual Report 2002-2003, Ministry of External Affairs, Government of India, pp. 94-97; Annual Report 1999-2000, Ministry of Defence, Government oflndia, particularly p .10. See also AnnuJI Reports of the various years since 1992, Ministry of Home Affairs, Government of India and Mini:.try of Law and Justice and Company Affairs, Government of India, New Delhi.

See Article VI of the CWC. It contains "activities not prohibited under the Convention".

332

incentives in the form of full, effective and non-discriminatory implementation of

Article XI.

Political Declaration in the CWC First Review Conference

One of the most notable aspects of the First CWC Review Conference was the approval

of Political Declaration by States Parties, 252 The first para of the declaration states

that:

"The States Parties reaffirm their commitment to achieving the object and purpose of the Convention, as set out in its Preamble and provisions. The Convention and its implementation contribute to enhancing international peace and security. Its full, universal and effective implementation will exclude completely, for the sake of all humankind, the P.Ossibility of the use of chemical weapons (CWs), which is prohibited by the Convention. Furthermore, the Convention mandates the elimination of CW stockpiles and CW production capacities by all States Parties, aims at CW non-proliferation and at confidence building among States Parties, establishes an international system for verification of compliance with its provisions, and provides for the fostering of international cooperation and assistance in the peaceful uses of chemistry.

The political declaration broadly covers the following: 253 The developments in science

and technology in the implementation of the Convention, in accordance with its

provisions; the commitment to comply with all their obligations under all the provisions

of the CWC in a non-discriminatory malll1er; close synergy between the State Parties

and the Technical Secretariat and of the OPCW for the effective implementation of the

CWC; the universality of the CWC is fundamental aspect to the achievement of its

object and purpose; the intensification of bilateral and multilateral efforts towards

universality of the Convention; the role of the United Nations in the global fight against

terrorism in all its forms and manifestations, in conjunction with its full and effective

implementation helps to prevent access to CWs by terrorists; the right to request a

challenge inspection to clarify and resolve any ambiguity or concern about compliance

by exchanging information and by conducting consultations among themselves, and fully

committed to meeting their destruction obligations and the verification costs, as required

by the Convention; the role of OPCW as an effective international verification system

based on declarations and onsite inspections; a credible and effective verification regime

related to CWs and their destruction in a nondiscriminatory, efficient, and cost-effective

252 Political Declaration as approved by the tirst Special Session of the Conference of the States Parties to Review the Operation of the CWC, 28 April-9 May 2003. The Political Declaration can be available at OPCW website: http://www.opcw.org, 28 April-9 May 2003. The political declaration contains 23 paras that cover entire range of issues in an in-depth manner.

See, the Political Declaration in the CWC Review Conference, 28 April-9 May 2003. See also <www.opcw.org>, 28 April 2003.

333

manner in accordance with the provisions of the Convention; national implementation

measures as an essential element by ensuring the safety of people and to protect the

environment; to foster international cooperation for peaceful purposes in the field of

chemical activities of the States Parties; to promote free trade in chemicals as well as

international cooperation and the exchange of scientific and technical information in the

field of chemical activities for purposes prohibited under the Convention; the

commitment to implement the Convention is a manner in which avoids hampering their

economic and technological development for purposes not prohibited under the

Convention for the promotion of scientific and technological knowledge in the field of

chemistry for peaceful purposes.

The political declaration does not provide enough leeway and clear-cut roadmap towards

future course of action. This is one lacuna. Achieving the goals of the Convention

requires ratification and effective verification.' The impact of globalization on political

system and the linkages of chemical terrorism are one of the lacunae in the political

declaration. Political declaration does clearly not spell out how the relevant

developments in science and technology and industry make it more applied and non­

discriminatory. It is not stressing how multilateral diplomacy can do more in the CWC

domain. One question still remains unanswered, if the CWC is successfully brought into

force by the international community, will it make a difference? However, the political

declaration is a blueprint and thoughtful approach towards the CWC. And the

affirmation of States Parties under Article VI (deals with detailed procedure:; for the

implementation) taking into account all factors. envisaged in the Convention-activities,

characteristics, and equitable geographical distribution are. noteworthy. The political

declaration should have explained the incapacitating chemical and biological agents. The

pursuit of incapacitating chemical and biological agents has important implications not . . only for the CWC but also for fundamental rules of international humanitarian law. If

used in armed conflict they would make it difficult or impossible to determine when a

combatant is "out of action" and thereby afforded protection and assistance. An

incapacitated combatant would probably not appear to be injured and may be unable to

show a sign of surrender. It would be difficult to train soldiers to distinguish whether

an enemy were incapacitated or remained a threat. The resulting combination of

incapacitants and lethal force could significantly increase the lethality of arn1ed

conflicts. The introduction of incapacitants would also be likely to undermine the rule

334

prohibiting the use of weapons against civilians -- one of the most basic norms of

warfare. 254

Since the CWC's entry into force much has been achieved in regard to setting up the

OPCW and implementing the core provisions of the Convention. Almost 150 states have

ratified or acceded to the ewe, four of these have declared actual stocks of chemical

weapons (CW), and destruction of different !ypes of CW has begun in all possessor

states. Likewise, the non-proliferation dimension, i.e., the horizontal spread of CW to

countries that did not previously possess them, has been put into effect through a large

number of routine inspections -- conducted by the Technical Secretariat of the OPCW.

Furthermore, OPCW states parties have held seven Conferences of the States Parties

(CSP), which according to Article VII, Paragraph 20 of the CWC are tasked with

reviewing the operation of the Convention.

As the CSP annually reviews the operation of the Convention, one might ask what is

the unique role of the Review Conference. 255 The CWC contains two provisions that

relate directly to the Review Conference. According to Article. VIII, paragraph 22:

The Conference shall no later than one year after the expiry of the fifth and the tenth year after the entry into force of this Convention, and at such other times within that tlme period as may be decided upon, convene in special sessions to undertake reviews of the operation of this Convention. Such reviews shall take into account any relevant scientific and technological developments. At intervals of five years thereafter, unless otherwise decided upon, further sessions of the Conference shall be convened with the same objective.

In addition, Part IX, Paragraph 26 of the Verification Annex contains a requirement

that:

At the first special session of the Conference convened pursuant to Article VIII, Paragraph 22, the provisions of this Part of the Verification Annex shall be re-examined in the light of a comprehensive review of the overall verification regime for the chemical industry (Article VI, Parts VII to IX of this Annex) on the basis of the experience _gained. The Conft:rence shall then . ~ak~ recoq1mendations so ·as to Improve the effectiveness of the venficatiOn regime.

It follows from these stipulations that the Review Conference cannot but be grounded

in a thorough review and assessment of the first five years of the OPCWs' operation.

254

155

See <http://www .icrc.org > statement by The International Committee of the Red Cross, Geneva, 29 April 2003, CWC First Review Conference held in The Hague.

For a complete range of analysis and detailed discussion on this, see Alexander Kelle, "The First CWC Review Conference: Taking Stock and Paving the Way Ahead" in Disarmament Forum edited by Kerstein Vignard, Vol.4, 2002, UNIDIR, Geneva, pp.3-9, particularly page no.3. This UNIDIR disarmament journal theme and focus in "The CWC Review Conference". .

335

At the same time, it must not be allowed to stop at this point. Rather, participants in

the Review Conferen~e must venture to answer how the review process translates into

action for the next five-year period.

Destruction of Chemical Weapons: An Overview

The CWC requires that States Parties possessing chemical weapons must destroy them

in a safe and environmentally friendly manner. It specifically forbids the disposal of

chemical weapons by open pit burning, land burial or dumping in any body of water.

Where chemical weapons were buried on its territory before 1 January 1977, or dumped

at sea before 1 January 1985, a State Party may, however, choose whether or not to

recover them. If it does recover them it will. be required to declare the weapons and

destroy them. States Parties possessing chemical weapons are, except in exceptional

circumstances, required to destroy them within ten years of the Convention coming into

force. The rate of destruction is also determined by the Convention: 256

Within 1 year: Begin destruction of Category 2 and 3 Chemical weapons.

Within 2 years: testing of the first destruction facility.

Within 3 years: 1 per cent destroyed of Category 1 chemical weapons.

Within 5 years: 20 per cent destroyed of category 1 chemical weapQns, all of category 2 ana 3 chemical weapons.

Within 7 years: 45 per cent of category 1 chemical weapons.

Within 10 years: All category lchemical weapons.

The destruction of these chemical weapons will be verified by the continuous on-site

inspections form the Technical Secretariat of the OPCW and the use of on-site

256 To facilitate implementation of the ewe and application of verification measures, toxic chemica sand their precursors are listed in three schedules corresponding to the degree of concern they raise.

Schedule 1 • Chemicals that have been developed,produced, stockpiled or used as chemical weapons; that pose otherwise a high risk to the object and purpose of the Convention by virtue of their high potential for use in prohibi!ed activities; and that have little or no use for purposes that are not prohibited.

Schedule 2 • Chemicals that possess such lethal or incapacitating toxicity as well as other properties that could enable them to be used as chemical weapons; that may be used as precursors in chemical reactions at the final stage of formation of chemicals listed in schedule I and party in schedule 2; that pose a significant risk by virtue of their importance in the production of chemicals listed in schedule 1 and partly in schedule 2; and that are not produced in large commercial quantities for non-prohibited purposes.

Schedule 3 • Chemicals not listed in other schedules and that have been produced, stockpiled or used as chemical weapon~; that otherwise pose a risk because they possess such lethal or incapacitating toxicity as well as other properties that might enable them to be used as chemical weapons; that pose a risk by virtue of their importance in the production of chemicals listed in Schedule 1 and partly in Schedule 2; and that may be produced in large commercial quantities for not-prohibited purposes. For further details, see Jozef Goldblat, Arms Control· A Guide to Negotiations and Agreements (London: SAGE Publications, 1994), pp.91-111, particularly p.l05.

336

monitoring equipment. An extension granted to one party would not automatically

entitle another party to obtain an extension; a special application would have to be

submitted by the State concerned .. 257 A State Party which has on its territory chemical

weapons belonging to another state must make efforts to ensure that the weapons are

removed from its territory no later than one year after the Convention enters into force.

If these weapons are not removed, the Party is obliged to destroy therr; it may request

other States to provide assistance in the destruction.

All chemical-weapon production facilities must cease production immediately after the

Convention has entered into force, and be closed within 90 days thereafter. Their

destruction should begin not later than one year after the Convention's entry into force,

and be completed in the course of the subsequent nine years. Chemical-weapon

production facilities may be temporarily converted for destruction of chemical weapons.

Such a converted facility must be destroyed as soon as it is no longer in use for

destruction and in any case no later than ten years after entry into force of the

Convention. In exceptional cases of "compelling need", permission may be granted to

convert a chemical-weapon production facility for purposes not prohibited under the

Convention rather than destroy it. Conversion should be made in such a manner as to

make the converted facility not more capable of being reconverted into a chemical­

weapon production facility than any other facility used for peaceful purposes.

Facilities for the safe destruction of the chemical weapons are very complex ·and

expensive. the largest facility currently operating in the world is located on Johnston

Atoll, a remote island in the Pacific Ocean. More recently, the Chinese government and

the Chinese people pay high attention to the resolution of the issue of the Chemical

Weapons abandoned by Japan in China. 258 ·. The Chemical Weapons left over by

2~7 The destruction of chemical weapons is to begin not later than two years after the Convention enters into force tor a given party. The order of destruction does not take into account the qualitative aspects of chemical weapons. This was criticized by States which would have preferred to see the most toxic chemical agents destroyed first. If a party believes that it will be unable to ensure the destruction of all schedule I chemical weapons and their components within the above time-limit, it may request an extension of the deadline. Such a request is to be made no later than nine years after the entry into force of the Convention, should specify the duration of the proposed extension, explain the reasons and contain a detailed plan of destruction during the proposed extension and the remaining portion of the original ten-year period. A decision on the request is to be taken by the Conference of the Parties. In no case may the deadline be extended beyond fifteen years. Ibid., p.l06.

Statement of Ambassador Zhu Zushou, Permanent Representative to the OPCW and Head of the Delt~gation of the People's Republic of China, at the First Review Conference of the Chemical Weapons Convention,

(continued ... )

337.

Japanese invading army during World War II have caused rising harm to local Chinese

residents. In recent years, Japan has, as the Abandoning State, made a large amount of

preparations for the destruction of its abandoned chemical weapons. China expresses its

appreciation for this. The actual destruction has not yet started. China hopes that Japan

will comply with the provisions of the Convention earnestly and speed matters up, so

as to start the destruction process at an early date and complete it within the deadline

set by the Convention. The Chinese side will continue to honour its obligations under

the Convention and provide necessary and adequate assistance in this regard. China will

continue to support the OPCW in its role in resolving the problem of the chemical

weapons abandoned by Japan in China.

India and Destruction of Chemical Weapons

At the end of 2001, India had destroyed approximately 29 per cent 0f its category 1

chemical weapons and over 39 per cent of its category 2 chemical weapons. 259

Facilities used to produce chemical weapons must also be destroyed or, in exceptional

circumstances, converted for use for purposes not prohibited by the Convention. The

process of destruction or conversion is a difficult process, hazardous and lengthy task.

Inspectors from the OPCW will monitor the progress of the destruction and will verify

its completion. Apart from Johnston Ato!ll, r~mote island in the Pacific Ocean, other

destruction facilities are currently under construction in the Russian Federation and

within the continental United States of America. Each of these countries is eventually

expected to have up to eight such facilities. The Convention provides for destruction of

all chemical weapons including old and abandoned chemical weapons by the States

Parties. The States Parties have a right to develop, produce, otherwise acquire, retain,

transfer, and the use of Toxic Chemicals and Precursors for purposes not prohibited

under the Convention, such as industrial, agricultural, research, medical

258(. • • continued)

28 April 2003, held in The Hague, Netherlands (the First CWC Review Conference - 28 April-9 May 2003).

Opening statement hy the Director-General to the Executive Council, OPCW at it~ twenty-seventh ~ession (note 87), para 14. Category I CW consists of Schedule I chemicals and their parts and components. Category 2 CW cunsists of all other (non-schedule I chemicals and thei•.· parts and components. CWC, Part IV(A), Para.l6. For more details see, SIPRI Yearbook, Various years, particularly 2002 (Oxford: Oxford University Press, 2002).

338

pharmaceuticals, protective and other peaceful purposes. 260 It also entails a number

of obligations like regular reporting of data in respect of chemicals related to Chemical

Weapons Convention, Chemical Weapons Production Facilities, not control ·agents,

routine inspection of the declared facilities, challenge inspections at short notice on any

facility or location, etc. The data will have to be collected and compiled on continuous

and time bound basis from the industrial units scattered all over the country. For

ensuring proper implementation of the Convention, it was also decided to make it

mandatory for the persons engaged in activities covered by the Convention to register

themselves with a registration authority. 261 The Act implementing the Convention also

prohibits development, production, acquisition, stockpiling, transfer and use of chemical

weapons, use of riot control agents such as method of warfare and certain other

activities. The Act makes penal provisions for non-compliance of statutory requirements

relating to the fulfillment of the obligations mider the Convention.

260

261

See Annual Report-- 2000-2001, Ministry of Law, Justice and Company Affairs, Government of India, New Delhi, p.29.

Ibid.

339