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Constructive ambiguity, or the insertion of science review in the CWC

(Science and technology review under the BTWC, Part 2)

Comparing the Biological and Toxin Weapons Convention (BTWC) and the Chemical Weapons Convention (CWC) is a useful exercise for imagining what could have been, especially for the former relative to the latter. Completion of negotiations lies 21 years apart. What became possible by 1992 was simply not an option in 1971. The cold war had ended; the 1987 US-USSR Intermediate-Range Nuclear Forces Treaty paved the way for onsite inspections; and an eight-year war between Iran and Iraq had seen widespread chemical weapon (CW) use on battlefields, against civilians and for genocidal purposes. These events not only generated urgency to finish CWC negotiations, they also created the space for an elaborate verification regime based on close interaction between an international organisation – the later Organisation for the Prohibition of Chemical Weapons (OPCW) – and states parties.

OPCW SAB poster for the 4th CWC Review Conference report (2018)

Having agreed on the principle of verification – not just of the destruction of existing stockpiles, but also of sections of the chemical industry and certain research facilities in support of the prevention of future CW armament or rearmament – negotiators came to understand the need to stay abreast of science and technology (S&T) advancements with a bearing on the CWC’s longevity. The OPCW was thus to have a Scientific Advisory Board (SAB) as one of its subsidiary bodies.

The first part of this analysis described the context and challenges for advancing an S&T review mechanism at the 9th BTWC Review Conference next year. This contribution looks at how states first negotiated the SAB as a part of the OPCW’s future structure and responsibilities and then determined its composition, audiences, specific tasks and outputs, and rules of procedure. While context and circumstances are different for the BTWC, the analysis nonetheless clarifies some dynamics of disarmament politics that will likely play out in the run-up to, during, and perhaps after the 9th Review Conference.

Forging necessary compromises in disarmament politics

The CWC tasked the Director-General with setting up the SAB (Article VIII, para. 21(h)) upon entry into force. As a subsidiary body to the OPCW, the SAB is ‘to render specialized advice in areas of science and technology relevant to this Convention, to the Conference, the Executive Council or States Parties’. The CWC mandates five-yearly special sessions of the Conference of the States Parties (CSP) – the OPCW’s highest decision-making body – to review the treaty’s operation. This review should ‘take into account any relevant scientific and technological developments’ (Article VIII, para. 22). The convention places responsibility for the SAB’s organisation and functioning in the hands of the Director-General. This includes the appointment of the Board’s members based on the relevance of their specific scientific expertise to the CWC and the possibility of establishing temporary working groups of scientific experts to provide recommendations on specific issues. He is to execute these responsibilities in consultation with the states parties (Article VIII, para. 45). Taken together, the different paragraphs in Article VIII identify the SAB’s general composition, primary audiences, main objectives, and one finality, namely contribution to review conferences.

The CWC entered into force on 29 April 1997. The first CSP session (6-23 May 1997) adopted decisions prepared by the Preparatory Commission and appointed the first Director-General. The Second CSP session (1-5 December 1997) decided on the SAB’s terms of reference, which the Director-General had helped to develop in interaction with a specially appointed facilitator and the states parties over the preceding months. The decision also provided for the inclusion of resources in the annual budget starting in 1998 to cover travel and per diem costs for the annual meeting. While it did not preclude additional meetings, these could take place only without any financial burden to the OPCW.

There were thus two distinct phases of building consensus. The first, or external phase unfolded during the CWC negotiations when participating states had to agree among themselves on the necessity of science advice. The second, or internal stage followed the treaty’s entry into force and the Director-General’s appointment at the first CSP session. He then became a focal point for state party interactions when they were drafting and preparing the decision on the SAB’s rules of procedure. After its adoption at the Second CSP session, he appointed the board’s members having consulted with states parties and initiated board’s programme of activities.

It is worth noting that the mix of states active in the Ad Hoc Committee on Chemical Weapons of the Conference on Disarmament differed from the original states parties that had completed their ratification process before the CWC’s entry into force.

The external phase of consensus building on the SAB

The external phase of consensus building concerns more the acceptance of the rationale for a particular idea so it can become part of a future treaty, the proposition and insertion of language in the draft text, and its moulding in deliberations until all delegates could accept it in the final treaty version. This stage does not yet include the practical modalities for the idea’s execution.

When France first raised a scientific advisory council in the Ad Hoc Committee in 1987, it explained its proposal in relation to the verification regime. It argued that scientific and technological developments could challenge the effective implementation of the future CWC. The French suggestion appealed to the convention’s nascent verification regime and its long-term implementation yet was sufficiently vague not to raise fundamental objections given the then-existing state of negotiations. As Kathleen Lawand, Legal Officer in the first year of the OPCW’s operation, explained: in France’s view ‘the constitution of the OPCW [ought to] provide a role for the scientific community in ensuring that the Convention remain a dynamic instrument capable of adapting to the latest scientific and technological developments’. In a rationale two years later (when the treaty outline had advanced much further), France appealed to the universal nature of science that transcends cultural differences and national interests ‘to provide an objective assessment of scientific and technological developments as they affect the Convention’. Whether science is neutral or an impartial dispenser of truth was immaterial at the time; however, as Lawand noted, the issue would become important in the second, internal phase when the SAB’s independence from governments and the OPCW’s decision-making organs had to be safeguarded.

When France first suggested a science review mechanism, vagueness necessarily matched the treaty’s incipiency. As with other key parts of the CWC, such as Article XI on international cooperation and technology exchanges for peaceful purposes, the idea for the SAB matured towards the end of the negotiations. Meanwhile, experts from academia, research establishments and industry had joined many delegations to advise on the scientific and technical dimensions of weapon destruction and industry verification. And expertise also came from other stakeholders in CW disarmament, including non-governmental organisations. The net outcome was that, on the one hand, all negotiating countries came to appreciate the need for scientific and technological advisory support for the future organisation and, on the other hand, the influx of such expertise from different sources gradually filled out the possible mandate and target audiences for an advisory organ.

OPCW SAB – slide from a briefing to the Open-Ended Working Group preparing the 4th Review Conference (2018)

However, the concreter a proposal becomes, the greater the risks for disagreements and contradictory draft provisions. As Katie Smallwood described in her doctoral dissertation on expert advice in the CWC (p. 108), this was when vagueness in drafting became deliberate to generate ‘constructive ambiguity’ to allow multiple delegations their own interpretation or to bridge contradictions among different proposals on the same topic. Such constructive ambiguity related to the division of responsibilities between the future SAB and the different bodies of the OPCW, i.e. the separation of responsibilities between the Director-General and the states parties represented in the CSP and the Executive Council.

Shifting to the internal phase of consensus building on the SAB

Following the conclusion of negotiations in September 1992 and the opening for signature in January 1993, signatory states convened in the Preparatory Commission of the OPCW and set up the Provisional Technical Secretariat, both of which would cease to function when entry into force formally established the OPCW with its Technical Secretariat. During its mandate (January 1993 – April 1997) the Preparatory Commission failed to draw up the SAB’s terms of reference, which indicated the degree to which differences over the division of responsibilities and the role of the Director-General still existed.

Put differently, the Preparatory Commission peeled away the different layers of constructive ambiguity that had allowed the inclusion of the SAB in the CWC. Hence, substantial differences of opinion surfaced. But because the treaty text lays out several important parameters, states parties had no other option than transitioning to the second, internal stage of consensus building after the CWC’s entry into force.

Specifically, Article VIII requires establishment of the SAB, identifies the highest administrator of the Technical Secretariat as the body responsible for the SAB’s organisation and functioning, and links the SAB’s tasks to the treaty’s implementation and the periodic S&T assessments for review conferences. Because of the Preparatory Commission’s failure to draft a decision on the terms of reference for adoption at the First CSP, the CWC made it incumbent on the states parties and the Director-General to produce such a document by the Second CSP seven months later.

Besides the general reference to the SAB in the convention, three other factors characterised this internal stage. First, with entry into force, states now discussed implementation matters as CWC parties with the newly appointed Director-General supported by the Technical Secretariat instead of just among themselves. The Director-General had a more focussed vision on purpose of the SAB’s advice to him and likely already had concrete questions in mind based on the (unfinished) work by the Preparatory Commission.

Second, the fledgeling OPCW developed its own internal decision-making processes involving the Executive Council and the CSP. The Executive Council, comprising a subset of 41 states parties distributed over the five regional groups, is responsible for the day-to-day functioning of the OPCW. After the First CSP, it embarked on high-paced monthly meetings preparing decisions for the Second CSP. As a fairly straightforward consequence of having an international organisation with its staggered policy-making bodies, a consensus building process emerged in which the CSP considers decision proposals already agreed by the Executive Council. However, the routine for constructing unanimity begins earlier. States parties may start consulting bilaterally; the Director-General and the staff of the Technical Secretariat will work with a state party or group of states parties to sketch out decision proposals and ensure their conformity to the CWC and earlier decisions. Deliberations within each one of the five regional groups ensure harmonisation of positions among important subsets of states parties, and ultimately consideration of a proposal in the Executive Council offers final amendment opportunities if still necessary.

Another option open to the OPCW is the appointment of a facilitator to take a new or unresolved matter forward. This was the process adopted at the First CSP regarding all issues left unresolved by the Preparatory Commission, which included the SAB terms of reference. According to this decision (C-I/DEC.70, 22 May 1997), the facilitators were to submit decision proposals accompanied by a report in his or her name describing the consultation process and the rationale for the proposal to the Committee of the Whole of the Second CSP. The Executive Council was to monitor progress of the facilitators; the Director-General and the Technical Secretariat were to assist the facilitation.

With the CWC’s provisions taking effect, states parties could no longer avoid decision-making. Looming deadlines they had decided on in the First CSP shifted their discussions away from political positioning to the legal, organisational and budgetary dimensions. Thus, on 5 December 1997 the Committee of the Whole recommended the draft decision on the SAB’s terms of reference, as amended by it, for adoption by the Second CSP, which it did under Agenda Item Sixteen.

Third, several signatory states failed to ratify the CWC in time for entry into force, and thus missed the First and in some cases the Second CSP. They included a few key players during the negotiations and the Preparatory Commission stage, such as Iran, Pakistan (CSP1 and Executive Council meetings and facilitator consultations up to CSP2), and Russia.

The internal stage of consensus building continued after the adoption of the rules of procedure by the Second CSP in the form of the selection and appointment of the SAB members and the SAB decision at its first session in September 1998 to review both the terms of reference and the rules of procedure. The Ninth CSP (December 2004) amended the SAB terms of reference. In Chapter 6 of her doctoral dissertation, Smallwood analysed how the SAB, overcoming many impediments, further developed in relation to the Technical Secretariat, states parties, and other stakeholders, and consolidated and expanded its working methods, influence and reach. (SAB decision documents and reports are available from the OPCW website.)

Conclusion to Part 2

The closest the BTWC ever came to a process like the one that led to the establishment of the SAB as an OPCW subsidiary body was the consideration of a scientific advisory board for an international organisation for the prohibition of biological weapons (OPBW) envisaged in the draft legally binding protocol being discussed by the Ad Hoc Group (AHG). As noted in Part 1, the document in its final reiteration did not mandate the creation of an OPBW SAB but instead left the option to do so to a separate future decision by the OPBW CSP.

The negotiations ended in failure shortly after the circulation of the document in May 2001. Yet, the mere fact that at after five years of intensive diplomatic activity the agreement would not have established the subsidiary body upon entry into force demonstrates that negotiators never got close to external consensus on the necessity of science advise and probably got locked in debates on matters that ought to have been resolved in a second stage of consensus building. It is probably safe to state that certain AHG delegations denied the emergence of constructive ambiguity that advanced the SAB project during the CWC negotiations precisely because of the (re-)emergence of divergent views in the Preparatory Commission and the way of their resolution during the convention’s first year of operation.

Preparing for possible agreement on an S&T review mechanism at the 9th BTWC Review Conference will not follow the AHG experience and should not be influenced by it. Any proposal on the table would not seek to create a subsidiary body in some future organisation. Also, there exists absolutely no political consensus on the necessity of such an international body for the BTWC.

Today, views on the purpose, functions and organisation of a review mechanism appear to converge but political consensus on its necessity is not a given. States parties will therefore need to strike a first-stage external compromise that includes other expectations for future BTWC governance before they can turn to second-stage internal compromises that will settle the S&T review mechanism’s final format and procedures.

The next part will attempt to identify opportunities for building consensus and discuss possible roadblocks.

 

Part 1: ‘Within the next 5 to 10 years, it would probably be possible…’

Part 2: Constructive ambiguity, or the insertion of science review in the CWC

Part 3: External consensus building at the 9th BTWC Review Conference

1 Comment

  1. […] Preparing for possible agreement on an S&T review mechanism at the 9th Biological and Toxin Weapons Convention (BTWC) Review Conference will not follow the CWC Ad Hoc Group experience and should not be influenced by it. Any proposal on the table would not seek to create a subsidiary body in some future organization. Also, there exists absolutely no political consensus on the necessity of such an international body for the BTWC. Today, views on the purpose, functions and organization of a review mechanism appear to converge but political consensus on its necessity is not a given. States parties will therefore need to strike a first-stage external compromise that includes other expectations for future BTWC governance before they can turn to second-stage internal compromises that will settle the S&T review mechanism’s final format and procedures. The Trench […]

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