7. RECOMMENDATIONS
7.2. R ECOMMENDATIONS FOR THE D IRECTOR G ENERAL AND THE T ECHNICAL S ECRETARIAT
Board (SAB) where appropriate, should:
(1) Develop appropriate verification mechanisms applicable to ICA weapons
In their Report on developments in science and technology, prepared for the Third Review Conference, the Scientific Advisory Board recommended that the Secretariat start “preparations for verification activities, relevant to incapacitating chemicals, that could be required in an investigation of alleged use (IAU)”409. In his formal “Response” to the SAB Report, the Director
408 For the latest versions of relevant CBM forms see: United Nations, Seventh Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Geneva, 5–22 December 2011, Final Document of the Seventh Review Conference, BWC/CONF.VII/7, 13th January 2012.
409 As detailed in: OPCW, Conference of the States Parties, SAB Report, RC-3/DG.1, Third Review Conference (29th October 2012) op.cit., paragraph 13.
General specifically committed the Secretariat to “pursue efforts to enhance its chemical-analysis capabilities”and to“work with designated laboratories on this issue.”410
On 5th September 2014, a “Note by the Director General”411 stated that “enhancement of the OPCW's laboratory chemical-analysis capabilities is ongoing in the context of the broader on-site and off-site sampling and analysis, which could involve any toxic chemical”412. However with regard to ICAs, “no specific verification preparations are being pursued by the TS [Technical Secretariat] with designated laboratories in this particular context.”413
It is unclear why no verification preparations specifically related to an investigation of alleged use of ICAs have taken place, to date. Since such activities come under the responsibility and competency of the Director General and the Technical Secretariat, such preparations should be initiated as soon as is feasible.414 In addition to developing analytical methods and procedures, the Technical Secretariat should engage in associated activities such as training courses for inspectors to enable them to address ICA weapons in investigations of alleged use.
(2) Review application of OPCW assistance and protection measures in cases of use or threatened use of ICA weapons
Under Article X of the Convention, each State Party has the right to: “request and…to receive assistance and protection against the use or threat of use of chemical weapons if it considers that:
(a) Chemical weapons have been used against it;… (c) It is threatened by actions or activities of any State that are prohibited for States Parties by Article I.”415
The Technical Secretariat should conduct a review of the OPCW assistance and protection programme and associated mechanisms established under Article X, to take account of the possibility that ICA weapons might be employed against a CWC State Party in an armed conflict or other situation (e.g. by armed non-State actors such as terrorist groups), so as to ensure that protection and assistance provided through the OPCW can deal with the consequences of such uses.
410 OPCW, Conference of the States Parties, Note by the Director-General, Response to the Report of the Scientific Advisory Board on Developments in Science and Technology for the Third Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Convention, Third Review Conference RC-3/DG.2, 8th –19thApril 2013 31stJanuary 2013, paragraph 15.
411 OPCW, Executive Council, Seventy-Seventh Session, Note by the Director General, Status of the follow-up to the recommendations on science and technology made to the Third Review Conference, EC-77/DG.11, 5th September 2014.
412 OPCW, Note by the Director General (5thSeptember 2014) op.cit., p.9.
413 OPCW, Note by the Director General (5thSeptember 2014) op.cit., p.9.
414 Some related activities may require further consultation with and/or agreement by relevant policy making organs. For example, the inclusion of new data on non-scheduled chemicals to the OPCW Central Analytical Database (OCAD) must first be submitted to the OPCW Validation Group and following their
recommendation, submitted by the Director General to the Executive Council for their consideration and approval.
415 OPCW, Chemical Weapons Convention (1993) op.cit., Article X(8).
(3) Monitor developments in science and technology applicable to development of ICA weapons, and bring activities of concern to the attention of States Parties
The Director General, in his “Response” to the SAB report on developments in science and technology, informed the Third Review Conference that the“Secretariat will continue to monitor developments relating to unscheduled and novel toxic chemicals and will explore ways in which to augment its technical capabilities in this area.”416He further informed the Conference that the Secretariat “will seek advice from the SAB on the feasibility of establishing a systemic approach to tracking and evaluating advances in science and technology, given the pace at which these advances are occurring.”417 Subsequently, in his Note to the October 2013 Executive Council, the Director General highlighted the potential utility of employing “technology monitoring and horizon scanning (a technique for detecting early signs of potentially important advances).”418
Given the long-standing and widespread concern voiced by scientific and arms control organisations, the SAB and a number of State Parties that certain advances in science and technology may be employed for the development of ICA weapons, it would be appropriate for such technologies to be included within the scope of the Secretariat’s monitoring mechanisms.
Furthermore, it would be beneficial if the OPCW established suitable mechanisms allowing the Technical Secretariat to bring relevant concerns to the attention of the States Parties and appropriate OPCW organs.
(4) Conduct a review of the existing legal constraints upon the use of ICA weapons in law enforcement
The legality of the potential employment of a toxic chemical for law enforcement purposes is clearly constrained by the CWC, in particular the General Purpose Criterion and Article II.(9).
Furthermore, CWC States Parties must give appropriate consideration to their obligations under all relevant international law, specifically international and regional human rights law, and determine how such direct obligations inform the interpretation and implementation of their obligations under the CWC.419 In order to facilitate full and effective implementation of the CWC in this area by States Parties, the Director General should institute a review by the Office of the Legal Advisor
416 OPCW, Conference of the States Parties, Note by the Director-General, Response to the SAB Report (31st January 2013) op.cit., paragraph 9.
417 OPCW, Conference of the States Parties, Note by the Director-General, Response to the SAB Report (31st January 2013) op.cit., paragraph 29.
418 OPCW, Note by the Director General, EC-74/DG.1 (24thJuly 2013) op.cit., paragraph 5.
419 Given the nature of the toxic chemicals under consideration and the proposed contexts for their use, the applicability of the Single Convention on Narcotic Drugs and the Convention on Psychotropic Substances, in addition to human rights law, should be assessed. Other instruments, notably the Biological and Toxin Weapons Convention may also be applicable if a wider range of ICAs–such as bioregulators and toxins (including peptides)–is under consideration. For further discussion see: Crowley, M. Potential implications for disarmament and other areas of international law, pp. 42–53, in: ICRC 2010 expert meeting report (October 2010) op.cit.; ICRC, Synthesis paper, (September 2012) op.cit.
(OLA), of the existing legal constraints under relevant international law, upon the use of ICA weapons in law enforcement, and determine their bearing upon the implementation of the CWC.
The OLA should report its findings to a suitable policy making organ of the OPCW.
7.3. Recommendations for civil society medical, scientific and academic