The Chemical Weapons Convention: Legal and Juridical Observations
International & National Security Law Practice Group Newsletter - Volume 1, Issue 1, Fall 1996
December 1, 1996John Adams
It is the inherent contradiction of the Twentieth Century that the same era that began and ended with the highest hopes for the advancement of the human condition has been interspersed with the most horrific brutality imaginable. The high-water marks of barbarity in our time have been characterized by the use of increasingly effective means of instilling terror in targets of real and marginal military value. Chemical weapons are an example of such dubious technological achievement. From Ypres and the Somme in the First World War, Ethiopia in the 1930's, Algeria in the 1950's, Aden in the 1960's, to Iran and Syria in the 1980's, gas warfare against unprotected civilians and poorly trained troops has proven an unexcelled means of creating mass, indiscriminate panic. So bitter was his memory of gas warfare that Adolf Hitler, whose lungs were seared by a phosgene attack in 1918, refused to sanction the use of chemical weapons against military opponents, fearing the very real prospect (secretly threatened through neutral diplomatic intermediaries) of retribution in kind by the Allies.
Since the 1899 Hague Declaration outlawing the use of asphyxiating gas in warfare, there have been repeated attempts to develop and implement an enforceable global ban on chemical warfare agents. These well-meaning diplomatic schemes have all choked upon the essential truism of contemporary international law: bereft of even a de minimis level of independent transnational enforcement power, the vitality of our embryonic system of global norms depends upon the dedication of individual states or coalitions to the cause of punishing transgressors. As was tragically demonstrated by the abortive Washington Naval Treaty (the first strategic arms limitation agreement) and the Kellogg-Briand Pact (a 63-nation convention that solemnly renounced Clausewitz's doctrine of war as an instrument of national policy) in the 1920's, the absence of real enforcement provisions and a jealous regard for state sovereignty are the twin plagues of international jurisprudence. Despairing, like Justice Cardozo, of the "twilight existence of international law..hardly distinguishable from morality" (New Jersey v. Delaware, 291 U.S. 366 (1934)), many of our profession have resigned themselves to the shared view of Thomas Hobbes and John Austin; in the absence of the command of a determinate superior (a supreme lawgiver, a coercive enforcement agent), what we have called international law is more charitably defined as a voluntary code of positive morality, adherence to which is more of a political rather than a juridical decision. The victor's justice of the Nuremberg and Tokyo Tribunals, and the ineffective half-hearted efforts of fragile coalitions in the Persian Gulf and Bosnia, have all contributed to this disheartened view of the limited benefits gleaned from 300 years of painfully incremental advances characterizing international jurisprudence.
Not to be deterred by these grim prospects, the minds and motives of lawyers and diplomats nonetheless grind exceedingly slow and maddeningly fine. After 24 years, fitful on-again and off-again discussions at the International Conference on Disarmament produced a multilateral convention banning the manufacture, stockpiling and use of chemical and toxin weaponry (known by the short title of the Chemical Weapons Convention, hereinafter the CWC). This is not the first attempt at a meaningful global ban on chemical weapons. The Geneva Protocol of 1925, originally proposed by the U.S. (and then perversely refused Senate ratification until 1974), was a statement of principle born from the horrors of the First World War. Prohibiting the military use of gas and bacteriological agents, the effectiveness of the Agreement was severely limited by several factors: the universal interpretation allowing retaliatory use of such weapons against signatories who violated the ban; a corollary understanding which held that the aforementioned limited "first use" ban was not applicable to non-signatories; the absence of an enforcement regime; and the protocol's failure to prohibit continued development and maintenance of chemical arsenals. As a result, of the 164 signatories to date, less than 40 ascribe to the Geneva Protocol without any restrictive reservation or interpretation. None of the world's significant military powers are counted within that exclusive group.
And yet, as a statement of political and humanitarian principle, the Geneva Protocol has not been without success. The onerous honor of being the first to breach the Agreement's ban on pre-emptive use of chemical weapons has been a distinction most major military powers have declined (although this reluctance has been noticeably absent in the case of isolated civilian populations, such as the Ethiopians, Chinese and Afghans, incapable of meaningful retaliation and of marginal interest to those who are). As the protocol entered its seventh decade of existence, however, adherence became the exception as traditional Cold War restraints exercised by the Superpowers on ambitious client states disappeared with the implosion of the Soviet Union. The First Persian Gulf War of the 1980's saw a complete disregard of the Geneva norm in the "War of the Cities," where repeated exchanges of ballistic missiles armed with chemical warheads caused thousands of civilian casualties in both Iran and Iraq, while Iranian front-line human wave attacks were met with concentrated use of chemical barrages by Iraqi forces. Neither side exercised very much discrimination between combatants and civilians. By the time the war ground to an exhausted stalemate, over 100,000 civilian and military casualties on both sides were attributed to chemical agents. Combined with the use of novel nerve agents by Russian forces in Afghanistan, the rule of the Geneva Protocol had practically ceased to exist by 1985.
A New Era Emerges
This deterioration of a generally accepted ban on preemptive chemical warfare was deeply troubling to the major Western military powers. In the operational context, our military and civilian populations were (and, in many ways continue to be) notoriously ill-prepared to confront any serious offensive threat involving chemical agents. Trained troops suffer near complete physical exhaustion after little more than 12 hours of rigorous chemical defense measures; the effectiveness and tempo of military operations suffer significantly as troops struggle with bulky and unfamiliar protective equipment; civilian population and essential support elements(teamsters, longshoremen, airbase maintenance staff) suffer disproportionate casualties and understandable panic, overwhelming medical facilities and abandoning critical supply points. In the traditional NATO/Warsaw Pact conflict planning which dominated post-World War II military doctrine, the West assumed that Soviet-led forces would launch intensive preemptive chemical attacks against front-line military forces and rear-echelon civilian populations as an intrinsic element of any planned European offensive. Our assumptions were correct but incomplete. The combined NATO intelligence services had underestimated the nature and extent of Warsaw Pact chemical arsenals, which were found to exceed Western stocks by a ratio of 10 to 1. Development of Intercontinental Ballistic Missiles armed with chemical and biological agent delivery systems, designed for deep-precision strikes in the United States, was found to be quite advanced at the time of the Soviet Union's demise.
Closely related to these military concerns was the proliferation aspect. Aspiring military powers, long on ambition but short on cash, and unable to gain admission to the Nuclear Club, routinely probed for the quickest path to situational parity with the Great Powers. This common Third World policy was designed to discourage would-be protectors from interfering with a developing state's play for regional hegemony by making the cost of intervention prohibitively high, both in terms of military commitment and incurred casualties. To achieve this functional stalemate between a nuclear superpower and a non-nuclear state (which translates into a clear victory for the weaker party), an equalizer is needed; something cheap, easily manufactured, minimally dependent upon imported components, and capable of producing militarily significant casualties (defined as an amount that affects the substantive outcome of a conflict, by influencing either the battlefield result or a state's continuing commitment to conclusive military resolution of armed hostilities). Chemical warfare agents, commonly called "The Poor Man's Atomic Bomb," are a tailored fit for the non-nuclear state's need for a military equalizer. With commonly available dyes, additives, pharmaceuticals, and pesticides delineated from military agents by the addition or deletion of a single processing step (which can often be accomplished covertly), and obsolete but perfectly serviceable chemical processing plants available for purchase, shipment, and erection at virtually any location within ninety days, even the most impoverished state can possess a chemical weapons capability. The potential risk to the legitimate exercise of U.S. military power posed by the proliferation of chemical weapons is an unacceptable corollary to the end of the Cold War. The concomitant terrorist threat posed to U.S. and allied civilian populations by the growing universal availability of such weapons is likewise a real and present danger that cannot go unchallenged.
There were two additional factors that motivated a growing consensus for the adoption of a more stringent global chemical weapons ban. First, there was the haunting, albeit fading, memory of the casualties from the First World War; the public re-examination of Second World War chemical and biological weapon-related atrocities committed by Japanese forces upon Chinese civilians and allied prisoners of war; and the visceral connection drawn in the public mind to the genocidal crimes committed in the Nazi gas chambers (which operations, for the record, one must grudgingly admit relied upon perfectly legal rodenticides). As the survivors and witnesses of these horrors grew older, their concern over the rise of revisionist histories denying the existence of such things and the declining public sense of revulsion sparked a movement to re-commit to public memory both the truth of what had happened and a dedication to avoid the reoccurrence of past tragedies. A telling point in this regard: President Bush was a major and consistent supporter of this Treaty. He cited his Mother's stories of the horrors she witnessed as a volunteer treating World War One gas casualties, and the promise she extracted from him to help abolish such weapons if he ever had the power to do so, as a driving motive in his CWC work.
Secondly, there was honest concern about the deterioration of a long-standing international ban on the use of a weapon whose greatest effect was upon non-combatants, a class traditionally afforded the greatest protection under the law of war. Chemicals are the least militarily efficient agents of destruction, with the possible exception of their bacteriological cousins. A minimal change in weather conditions can vitiate their effect or result in friendly force contamination. They are of limited use in the long-term denial of territory to an occupier, and against trained troops are little more than an annoyance. Their greatest effect is the panic and disproportionate casualties wreaked upon civilian populations and poorly trained troops; one group is afforded special protection as the most helpless victim of war, the other conceivably stands as cannon fodder and would offer little resistance if pressed by a superior aggressor. In short, chemical warfare is aimed at the marginal combatant and the outright noncombatant, and violates the venerable rules of proportionality of force and special status which govern both the law of war and the conduct of military operations. Unless an elemental sense of restraint and a rudimentary rule of law could be restored to the business of war, there was a real fear that the long-standing political and moral constraints which successfully restricted recourse to nuclear and biological options would experience a similar collapse. A standard relying solely upon military utility, devoid of positive moral values, would actually encourage early recourse to all types of terror weapons; in a relativist world governed almost exclusively by practical considerations, minor regional conflicts could quickly and uncontrollably escalate into catastrophic global confrontations. The Second Persian Gulf War (with its troubling evidence of Iraqi nuclear, chemical and biological warfare capabilities far beyond anything estimated by Western intelligence services) convinced the major powers that nothing less than complete elimination of the entire class of chemical warfare agents was needed to reinforce the badly weakened international law of war. It was in this environment that negotiations on an enforceable global chemical weapons ban were ultimately completed.
The multilateral CWC, like the Geneva Protocol, prohibits the use of chemical weapons. However, it goes farther in outlawing their manufacture and maintenance, requiring the destruction or peaceful conversion of production facilities. The restrictive "first use only prohibition" interpretation is specifically repealed, the retention of retaliatory stockpiles is prohibited, and individual national reservations or unilateral interpretations are prohibited. Like the 1972 Biological Weapons Convention (the BWC), the CWC prohibits the use, manufacture or maintenance of weaponized toxins (organic chemical poisons, whether produced naturally or by artificial synthesis). However, unlike the BWC and the Geneva Protocol, the Chemical Weapons Convention establishes a detailed and rigorous verification regime. A transnational enforcement authority, the OPCW (the Organization for the Prohibition of Chemical Weapons), is established to verify compliance with the terms of the Treaty. Headquartered at The Hague and staffed only by nationals of states party to the Treaty (defined as a signatory who has submitted the CWC to the mandatory treaty ratification process required by applicable domestic laws, and has obtained such ratification), the organization places heavy reliance upon a technical secretariat that operates under an international mandate independent of domestic political constraints. Within this technical secretariat is an inspectorate corps responsible for conducting treaty compliance and investigatory duties. These include inspections conducted on the territory of states party to the convention, and are classified as (1) routine scheduled visits to confirm various data and status declarations required by the convention; (2) challenge inspections to determine the existence of potential treaty violations; and (3) allegation of use investigations to verify the actual illegal employment of prohibited chemical warfare agents. The inspectorate cannot be barred from the territory of state parties (although individual inspectors can be refused entry); is afforded diplomatic status and immunities pursuant to the terms of the 1961 Vienna Convention on Diplomatic Relations; and operates under an "anytime, anywhere" mandate allowing inspectors limited, managed access to just about any place on a state party's territory deemed relevant to the purposes of the Convention. No right of access is obtained to the territory of a non-state party without express consent.
In addition to the inspection mission, the OPCW technical secretariat is also responsible for the management of an extensive treaty data reporting system. The CWC is of a dual character; an agreement to destroy all chemical weapons, the convention is also a non-proliferation treaty designed to retard the spread of chemical weapons capabilities through aggressive global trade management of predicate technologies and commodities. To accomplish this goal, the Treaty requires each party to provide the OPCW with data declarations concerning the annual production and consumption of certain key chemicals, as well as the location and output of essential manufacturing processes which could be diverted to covert production of prohibited agents. Parties to the Treaty are required to establish a National Authority (either an independent agency or an office within an existing government entity) to coordinate reporting responses and other related matters. The reporting requirements are divided among several schedules, which can be modified as technological advances warrant. The schedules divide chemicals of concern into several categories, with differing reporting and verification requirements (as well as production limitations). The most restrictive schedule deals with those chemicals that have little or no peaceful commercial purpose. A second schedule deals with those substances that have a "dual-use" character; utilized in peaceful commerce, they can also (with little or no modification) be used in warfare. A final schedule deals with chemicals that are widely used in almost every aspect of everyday commerce, but which are "precursors" (i.e., essential predicate ingredients or reactants) for chemical warfare agents. The reporting scheme is designed to monitor (and, where little peaceful purpose exists, to limit) production and trade of chemical substances and technologies that are most likely to be diverted for prohibited military development.
While the formal goal of these arrangements is to prevent such diversion, the practical objective is to increase a proliferator's risk of detection to the point of unacceptability, and thus retard the otherwise unhindered growth of chemical warfare capabilities. In this respect, the CWC is modelled along the lines of the Nuclear Non-Proliferation Treaty (NPT) and the administering International Atomic Energy Agency. While the record of the IAEA has been far less than perfect in preventing the spread of nuclear weapons technology, it has nonetheless slowed (particularly under its present, and perhaps most aggressive Chairman, Hans Blix) nuclear proliferation to an appreciable degree. There are generally acknowledged to be around 10 nuclear armed and/or capable states in existence today; in 1963, President Kennedy (a leading proponent of the Treaty) publicly predicted 25 by the 1970's. In light of the easier availability of chemical technology and components in the global market compared to fissionable materials, the OPCW will be hard-pressed to equal the IAEA record.
A product of negotiated consensus among the 64 countries comprising the Conference on Disarmament, the Treaty contains many compromises, and some account for the diminished enthusiasm which the CWC has encountered prior to entry into force (which requires 65 formal state party ratifications). An ambitious undertaking in response to a real global military and juridical crisis, this Agreement represents an unprecedented abrogation of two sacrosanct aspects of traditional state sovereignty; mercantile and military self-determination. Combined with an equally unprecedented intrusive enforcement regime with a potential (albeit limited) right of access to thousands of non-governmental, non-military private commercial enterprises, these aspects alone would give ample pause to the most favorably inclined. It was this Agreements' greatest misfortune to have entered a critical stage of negotiation at the exact moment the West triumphed over communism. With a fractured non-aligned movement denied the oddly moderating influence of the Soviet Union's money and discipline, the Third World was able to successfully play off the U.S. desire for consensus. With the implosion of the Eastern Bloc, the CWC could no longer be characterized as a brokered fait accompli governing the Superpowers and their clients; as a concerted multilateral limitation on military self-determination, the convention invited Third World comparisons to the NPT's preservation of the nuclear monopoly. To the nascent leadership of the non-aligned nations, the CWC was seen as depriving them of yet another means of resolving the military inequality between the Haves and the Have-Nots. While the West was content to demand and receive the right to maintain 1 ton per year per country of training and research stocks of chemical agent located at one publicly declared military site; the exclusion of riot control agents from the most restrictive terms of the Treaty; and the right under limited circumstances to demonstrate, by documentary means, a suspect facility's compliance with the treaty without the admission of inspectors, the Third World had higher ambitions. The price they demanded for their consensus was unlimited free trade in peaceful chemicals and production technologies. The final provision in this regard called for the repeal of discriminatory regulations limiting trade in chemicals between states party to the treaty. Unfortunately, the interpretation of the term "discriminatory" by such states as India, Pakistan, China and Myanmar (formerly Burma) (all with growing domestic chemical industries and consistent records of industrial piracy) included protectionist tariffs; national security restrictions; and technology transfer, patent and licensing agreements. This matter continues unresolved, and is likely to invite the troubling participation of the World Trade Organization before long.
Despite the unprecedented nature of the Treaty, and the unresolved concerns about the inspection regime and trade control implications, U.S. ratification had long been assumed to be practically pro forma in nature. The U.S. had long supported the Treaty, had submitted the draft which became much of the final Treaty, and exhibited bipartisan support from all but a few dismissed as neo-isolationist hard-liners. Even the Chemical and Pharmaceutical Manufacturers Associations gave the CWC their unrestricted support. And yet, shortly after submission for final Senate debate on 12 September 1996, the Clinton Administration concluded that there were insufficient votes to ratify the Treaty and withdrew the matter from consideration for the remainder of this Congress. The reasons behind this collapse of a decade-long bipartisan political agreement are prolix: a political decision by a Republican Senate to deny an opposition President a diplomatic victory during an election year; a last-minute withdrawal of support by former cabinet officers and the present Republican Presidential Candidate; a frighteningly incompetent inability of the Administration to deal with the drafting of necessary implementing legislation; and nagging doubts about the constitutionality of essential elements of the Treaty itself.
This is not an academic consideration for leisurely discussion; the constitutional issues raised by the Treaty are seminal, strike at the heart of essential individual rights and limitations on government power, and involve potentially disastrous financial and political risks to the U.S. The proposed verification regime, the most intrusive ever included in an arms control agreement, reaches over 11,000 manufacturers, producers, and users of industrial chemicals in the U.S. Challenge inspections can affect both public and private enterprises. A state party's obligation to abide by the Treaty is tempered by the provision recognizing the primacy of domestic constitutional obligations, and this had led several noted experts (Tanzman, Kelman, and Yoo) to conclude that warrant requirements can be interposed between the inspectorate's right of access and the object of the inspection. How the warrant requirement would operate in this context has not been clarified by the Justice Department to anybody's satisfaction. S. 1732, introduced by Sens. Lugar and Pell as the CWC's implementing legislation in May of 1996, raises more ambiguities than it resolves. The bill purports to protect commercial proprietary information from disclosure during the course of an inspection, but the CWC makes no such provision. An ex parte administrative warrant scheme governing challenge inspections is established, but recourse to a warrant is not mandatory and little substantive standard beyond a vague sense of reasonableness is defined. Fourth and Fifth Amendment issues have been but cursorily addressed by the Administration, and then in an uncoordinated and incomplete manner; the subject of federal fiscal liability for proprietary data compromised during the course of an inspection is conveniently ignored.
Fundamental concerns have been raised about the extent to which a federal power (in this case, execution of a Treaty obligation) can be delegated to an international organization. While the Administration has relegated such concerns to the realm of xenophobic militiamen, it is nonetheless true that CWC inspections are to be performed by international personnel, accountable only to the OPCW. U.S. personnel involved would serve in the primarily ministerial function of hosts or escorts. In this regard, the little-used and seemingly anachronistic Appointments Clause of the Constitution (Art. II, Sec.2, Cl. 2) becomes relevant. Responding to Crown abuses of Colonial appointments by dividing the power between Executive and Senate, the clause is designed to prevent manipulation of appointments by any single branch of the federal government; to insure that the manner of appointments is accountable to the people of the United States; and to buttress the separation of powers (Ryder v. United States, 115 S.Ct. 203 1 (1995), Weiss v. United States, 114 S.Ct. 752 (1994)). The nature of the power afforded under the CWC and the proposed implementing legislation defines the inspectors as officers of the United States the moment they decide what is to be searched and then conduct that search (traditional duties of federal law enforcement officers); the applicable case law is clearly on point (Buckley v. Valeo, 424 U.S. 1, 126 (1976); McGrath v. United States, 275 F.2d 94 (2d Cir 1921)). These are functions performed pursuant to federal law (the Treaty and the implementing legislation) and the inspectors act under that authority. Governed only by a voluntary search warrant procedure, their decisions are not reviewable by an American official unless the inspectors themselves decide to submit to such scrutiny. In effect, foreign inspectors, answerable only to a transnational authority, are exercising substantive enforcement authority under the color of federal law. The courts have long held that the federal government cannot delegate coercive state authority to a private individual or organization in order to circumscribe constitutional limitations (United States v. Mazurie, 419 U.S. 544 (1975)). This principle is directly applicable here; OPCW inspectors not accountable to the federal government cannot constitutionally exercise power under color of federal law. The interposition of a U.S. "neutral magistrate" under a mandatory administrative or judicial warrant scheme authorizing these inspections might suffice to attenuate this line of objection, and could also serve to ameliorate the otherwise substantial Fourth Amendment concerns over warrantless searches.
This would, of course, require more than a federal "rubber stamp" approval of every inspection ordered by the OPCW. The procedure would have to conform to long-settled standards. In addition to the decisionmaking presence of an objective magistrate, there would have to be a showing of both probable cause and reasonableness as to the extent of the place to be searched and the items seized (Johnson v. United States, 333 U.S. 10 (1948); Franks v. Delaware, 438 U.S. 154 (1978)). This of necessity implies the magistrate's right to refuse the inspection demand if the evidence does not meet the requisite constitutional standard, and in this regard the CWC's provisions allowing alternative demonstrations of Treaty compliance in lieu of inspector presence in a designated suspect area can then be utilized to meet U.S. foreign policy objectives. If this were deemed too great a risk to the successful accomplishment of overriding federal policy objectives, a warrantless search procedure could conceivably be instituted to assist the domestic implementation of CWC verification inspections. Such a warrantless procedure cannot allow the exercise of unrestrained discretion, or reliance upon arbitrary criteria, in the execution of governmental functions. The courts have required warrantless searches to be authorized only upon an independent inquiry and reasonable determination by a duly designated government officer, pursuant to clearly defined criteria which limits the discretion of both the authorizing and inspecting officials (NY v. Burger, 482 U.S. 691, 703 (1987)). This is presently problematic under the CWC, for the OPCW need not specify (beyond vague generalities of suspect illegality) the grounds upon which a challenge inspection is demanded.
Warrantless search procedures are amazingly susceptible to litigation, and in the context of this Treaty, could delay implementation for years (assuming that the CWC is eventually ratified by the Senate). It is uncertain, in light of the present state of the law, whether such a warrantless search procedure might even be found applicable to this verification regime. While the constitutional preference is clearly for a warrant, the Supreme Court has, in recent decades, carved a series of exceptional circumstances under which a warrant is not essential for a valid search to be conducted. Justice Scalia has recently observed that the Fourth Amendment requires, above all else, that a government search and seizure be reasonable to be constitutional; however, a warrant is not always required to establish the reasonableness of all government searches (Vernonia v. Acton, 115 S.Ct. 2386 (1995)). This doctrine has been demonstrated in relation to searches under exigent circumstances, or with voluntary consent, or random inspection schemes; circumstances, in short, where special needs beyond the dictates of normal law enforcement situations make the warrant requirement impracticable (Griffin v. Wisconsin, 483 U.S. 868 (1987)). Of greatest relevance to the present discussion is the exception for inspections and regulatory searches of commercial enterprises, cases that have primarily arisen in the context of mandatory health and safety regulatory codes. Warrantless searches have been upheld under such circumstances when the search was a critical part of the regulatory scheme, a warrant requirement could result in delay that would allow dissipation of critical evidence of criminal conduct, and the business is in a field "pervasively regulated" with a well-known records inspection requirement. The rationale that warrantless inspections were constitutional in heavily regulated industries due to an owner's implied consent has been limited to avoid the natural tendency of governments to retroactively claim such implied consent after the establishment of an administrative pervasive regulatory inspection scheme on a pre-existing industry (Marshall v. Barlow, 436 U.S. 307 (1978); Donovan v. Dewey, 452 U.S. 594 (1981), Burger, supra). Replacing this convenient but dangerous legal fiction of implied consent is a test which stresses a reasonableness review restricting the otherwise unfettered discretion of inspecting and regulating authorities. It requires the peculiar culture of a closely regulated industry, proven by both duration and extent of regulation; the presence of a substantial government interest supporting adoption of warrantless searches; and the presence of a constitutionally acceptable substitute for a warrant which carefully limits the time, place and scope of the search (Burger, supra).
Whether this test could be successfully applied to the wide range of properties subjected to the reach of CWC challenge inspections is a hugely debatable issue. The Supreme Court has never suggested, and indeed has appeared to reject, the proposition that the chemical industry is a closely regulated entity for Fourth Amendment purposes (Dow v. United States, 476 U.S. 227 (1986)). While the chemical industry is admittedly subject to comprehensive environmental regulatory schemes (CERCLA and RECRA) which grant the EPA a right of entry for the inspection of production and disposal procedures for hazardous chemicals, a facility owner or operator's refusal to grant access still requires the EPA to obtain a warrant issued by a federal magistrate or judge. Should this ambiguity be resolved, there remains the issue of the scope of the challenge inspection regime. A challenge inspection can be theoretically demanded against any location relevant to the purposes of the Convention. How do you declare all of Industrial America pervasively regulated for CWC implementation purposes without diluting the constitutional standard to the point of absurdity? Similarly, the warrantless scheme must exhibit some warrant-like characteristics; there must be notice of the likelihood of inspections on a regular basis, conducted pursuant to objective criteria which limit the inspectors' and administrators' discretion. The CWC is notably reticent about the criteria for invoking a challenge inspection, and the OPCW, once again, is under no obligation to specify relevant evidence. Similarly, the CWC places minimal limits on the time, place and scope of the contemplated inspection regime, and this minimalist approach is echoed in the proposed implementing legislation. While appropriate for a Phillip Glass work, the legal minimalist school fails to meet the burden of conforming the CWC to the requirements of the Fourth Amendment.
The CWC is a prime example of an honorable intention poorly executed. In present form, it poses severe constitutional difficulties which, while ultimately surmountable in my belief, will require thoughtful analysis, artful legislative drafting and a cooperative partnership with the Senate. Considering those responsible within the Administration for pursuing ratification of this Agreement, such an approach is, for at least the foreseeable future, highly unlikely.
The attitudes displayed by the cabinet departments responsible for preparing the implementation of this Treaty have been resoundingly incompetent. The Commerce Department, nominally responsible for providing guidance to the private sector for this Treaty's entry into force, has refused to get involved, citing this as a military disarmament treaty. The Defense Department has reluctantly filled the Commerce gap, sponsoring several well-received legal implementation analyses, and providing industrial security training seminars in anticipation of potential CWC inspection related threats to proprietary commercial data. The State Department Legal Advisor and the Arms Control & Disarmament Agency, after submitting an "Advise and Consent" message to the Senate of 1993, have both remained singularly unhelpful and uncommunicative in regard to this Treaty (thereby upholding a fine diplomatic tradition). Accordingly, the substantive debate over the constitutional aspects of CWC implementation has devolved upon the ranks of Academia and a small corps of former Arms Controllers and Diplomats. It has been the powerful observations of this small but dynamic group that has driven the debate over this bastard child of consensus diplomacy. It is mind-boggling that a supportive administration would leave the fate of such a unique and controversial agreement to non-governmental advocates. There is a definite issue about the non-delegation doctrine here.
Political observations aside, what of the future of this Treaty? We are damned if we ratify and damned if we don't. If we ratify and implement the thing haphazardly, we risk our world leadership in the chemical industry, invite potentially hostile representatives of an unaccountable foreign organization onto our soil armed with intrusive powers of search and seizure, almost guarantee the weakening of our tariff and patent licensing laws, and risk the embarrassing prospect of seeing the whole thing collapse in a morass of litigation and recrimination. If we don't ratify, the Russians will follow our lead: without the two largest military chemical powers in the world, the enforcement agency becomes a powerless rump, offering nothing but a false sense of security and accomplishing little of substance except blocking our chemical industry's market access to signatory states.
If this were a perfect world, I would have us scrap the whole thing as a bad dream and return to an elemental beginning. Admit that the only impetus for not employing chemical weapons is the fear of massive retaliation by more destructive means; that means enunciating a clear public U.S. military doctrine of immediately utilizing nuclear weapons to punish the use of chemical or bacteriological weapons. This doctrine would be based upon the traditional juridical doctrine which allows retaliation against a violator of the law of war. By amending the Geneva Protocol to specifically outlaw all military use, manufacture, arsenalization and development of chemical agents, we achieve the broad juridical and political ban lacking in the original 1925 Agreement, in simple, direct and unambiguous terms. The major powers would use their military power to promote universal adherence and sure punishment of transgressors. As the enforced moral norm becomes an accepted rule of law, a limited enforcement and verification regime could then be incrementally developed without the ancillary blackmail trade provisions imposed by the non-aligned movement. In the meantime, verification would be the province, as with the ABM Treaty, of national military and intelligence authorities. We preserve the basic character of the ban, and avoid the expense of yet another diplomatically protected means of conducting industrial espionage on U.S. soil.
The world is not always this simple. I expect that we will eventually ratify the treaty; we want to be at the table, if for no other reason than to insure the other guests mind their manners. I also suspect that, eventually, meaningful implementing legislation will be competently drafted, and the constitutional concerns will be successfully addressed. For, in the final analysis, a serious attention to the intricacies of the CWC promises to make proliferation of chemical weapons harder, riskier and more expensive. The dedication of the great powers to the principles of the Treaty may give pause to those who, from purely utilitarian motives, would otherwise resort to these poisons without further hint of conscience. The CWC may ultimately be a minimal enhancement of global norms, or it may prove a seminal transformation of international law. I suspect the final truth falls somewhere within the middle. Ultimately, the success of this Treaty depends upon the dedication of those states prepared to enforce the rule of law in circumstances least amenable to the concept of justice. How state self-interest is successfully addressed in the context of this ban will prove the key to the eventual global abolition of chemical weapons.
*John Adams is a pseudonym. The author is a veteran attorney in the government arms control community. His opinions are purely his own, and do not reflect any official position or policy of the United States, the Conference on Disarmament, or the Organization for the Prohibition of Chemical Weapons.