More than a year after the global treaty banning chemical arms - the Chemical Weapons Convention (CWC) - went into force, the legislation required for full United States compliance remains in limbo.
Without the CWC legislation, the US has no legal basis for requiring the domestic chemical industry to submit declarations to, or accept inspections from, the international treaty organization. As a result, the US is in "technical violation" of the CWC, undermining its effectiveness.
If the US is to continue leading the crusade to eliminate these inhumane and indiscriminate weapons, Congress should promptly pass the CWC legislation. It should also remove three "poison pills" from the current version that would seriously weaken the chemical disarmament regime.
The CWC bans the development, production, stockpiling, transfer, and use of supertoxic chemical agents such as mustard and nerve gas. The treaty - signed by 168 states and ratified by 113, including the US, China, and Russia - has the most ambitious verification system ever negotiated. Notably, a member-state can request a "challenge inspection" of any declared or undeclared site on the territory of another member-state that it suspects is producing chemical weapons. Such inspections without right of refusal are critical because countries seeking to produce chemical arms secretly would probably do so in undeclared facilities.
Unfortunately, the current version of the US legislation contains three exemptions and restrictions that would eviscerate the CWC verification system.
First, a "national security exception" would grant the US president authority to refuse a challenge inspection on national security grounds. Even if the US never used this option, other countries could demand it, creating a huge loophole.
Second, the legislation states that CWC inspectors may not take chemical samples from the US for analysis in certified reference labs overseas. Countries seeking to subvert the treaty's verification system will be quick to exploit this loophole, impeding the ability of the inspectors to analyze samples for evidence of illicit chemical weapon production.
Third, the legislation narrows the number of US industry facilities that must declare mixtures or solutions containing "dual-use" chemicals that have legitimate commercial applications but could also be used in chemical weapons. Should countries of proliferation concern follow suit, the scope of industry facilities that must be declared and opened to routine inspection would be significantly reduced, further abetting cheaters.
These unilateral exemptions and restrictions would seriously weaken the CWC and are unnecessary to protect legitimate US national security and industrial secrets. The US delegation to the CWC negotiations in Geneva spent nearly 20 years hammering out a workable balance between the level of intrusiveness needed to verify treaty compliance, on the one hand, and measures to safeguard military and proprietary information unrelated to treaty compliance, on the other.
To this end, the CWC includes a political mechanism for screening out "frivolous or abusive" challenge inspection requests, timelines that enable challenged facilities to prepare for inspections, managed-access procedures such as the right to shroud proprietary equipment, and extensive rules to protect the confidentiality of declarations and inspection reports. The Pentagon, the intelligence community, and the US chemical industry endorsed these provisions before the US signed the CWC in 1993.
Unless the loopholes in the current US legislation are closed, they could be used to hide chemical weapon activities, unravelling a landmark treaty that Republican and Democratic administrations worked for decades to achieve. The collapse of the CWC would accelerate the spread of chemical weapons, putting all US soldiers and civilians at greater risk. To prevent this grave outcome, Congress should promptly pass the CWC legislation without exemptions or restrictions.
* Jonathan B. Tucker directs the Chemical and Biological Weapons Nonproliferation Project at the Monterey Institute of International Studies in Monterey, Calif.