Prepared by the U.S. Department of State

March 2012

This report is submitted consistent with Condition (10) (C) of the Resolution of Advice and Consent to Ratification of the Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on Their Destruction (CWC). The United States ratified the convention on April 25, 1997, and the convention entered into force on April 29, 1997.

Condition 10 (C) provides as follows:

Annual reports on compliance: The President shall submit on January 1 of each year to the Committee on Foreign Relations of the Senate and the Committee on International Relations of the House of Representatives a full and complete classified and unclassified report setting forth—

(i) a certification of those countries included in the Intelligence Community’s (IC) Monitoring Strategy, as set forth by the Director of Central Intelligence’s Arms Control Staff and the National Intelligence Council (or any successor document setting forth intelligence priorities in the field of the proliferation of weapons of mass destruction) that are determined to be in compliance with the Convention, on a country-by-country basis;

(ii) for those countries not certified pursuant to clause (i), an identification and assessment of all compliance issues arising with regard to adherence of the country to its obligations under the Convention;

(iii) the steps the United States has taken, either unilaterally or in conjunction with another State Party:

• to initiate challenge inspections of the noncompliant party with the objective of demonstrating to the international community the act of noncompliance;
• to call attention publically to the activity in question; and
• to seek on an urgent basis a meeting at the highest diplomatic level with the noncompliant party with the objective of bringing the noncompliant party into compliance;

(iv) a determination of the military significance and broader security risks arising from any compliance issue identified pursuant to clause (ii); and

(v) a detailed assessment of the responses of the noncompliant party in question to action undertaken by the United States described in clause (iii).

The CWC imposes a number of basic obligations upon States Parties. Under the “general obligations” provisions of Article I, States Parties undertake never to develop, produce, otherwise acquire, stockpile, or retain chemical weapons (CW), or to transfer them to anyone, directly or indirectly. Article I also obliges parties “never under any circumstances” to use CW, engage in “military preparations” for their use, or “to assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.” Additionally, each State Party must destroy all CW in its possession, under its jurisdiction or control, or that it abandoned in another country, and it must destroy or convert all its chemical weapons production facilities (CWPFs) that it owns or possesses or are under its jurisdiction or control. Parties are also obliged not to use riot control agents (RCAs) as a method of warfare.

Article III imposes additional obligations, specifically by requiring the submission of detailed declarations of CW stockpiles, production facilities, other related facilities (e.g., laboratories and test and evaluation sites), and types of RCAs possessed. A State Party is required to declare, inter alia, whether it:

• owns or possesses any CW, or whether there are any CW located in any place under its jurisdiction or control;
• has on its territory old (OCW) or abandoned chemical weapons (ACW), or has ACW on the territory of another state;
• has or has had any CWPF under its ownership or possession, or that is or has been located in any place under its jurisdiction or control at any time since January 1, 1946;
• has transferred or received directly or indirectly any equipment for the production of CW since January 1, 1946;
• has any facility or establishment under its ownership or possession, or located in any place under its jurisdiction or control, that has been designed, constructed, or used since January 1, 1946, primarily for the development of CW; and,
• holds chemicals for riot control purposes.

Countries that were original States Parties to the CWC were required to submit their initial data declaration not later than 30 days after entry into force (EIF). Countries that ratified after CWC EIF, or acceded, became States Parties 30 days after the deposit of their instrument of ratification or accession and are required to submit their initial data declaration 30 days after becoming a State Party. Articles IV and V, and the corresponding parts of the verification annex, provide detailed requirements governing the implementation of the obligations on the destruction of CW and CWPFs.

Article VI of the CWC makes clear that each State Party has “the right, subject to the provisions of this Convention, to develop, produce, otherwise acquire, retain, transfer and use toxic chemicals and their precursors for purposes not prohibited under this Convention.” It thus makes clear that, even if the formal declaration and verification provisions of the CWC are followed, States Parties have no right to have or to deal in toxic chemicals or their precursors if their purpose in so doing is one that is prohibited under this Convention (e.g., to acquire chemical weapons or in any way to assist, encourage, or induce another to do so). Article VI also imposes specific obligations with respect to controlling specific chemicals listed in Schedules 1, 2, and 3 of the Annex on Chemicals—as well as facilities related to such scheduled chemicals – and subjects these chemicals to verification measures provided in the Convention’s Verification Annex.

Article VII of the CWC requires that each State Party, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under the Convention. These measures shall prohibit natural and legal persons anywhere on a State Party’s territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited to a State Party. A State Party also is required to enact penal legislation with respect to such activity. The United States continues to play a key role in pursuing compliance in this area through the Organization for the Prohibition of Chemical Weapons’ (OPCW) Article VII action plan, agreed by States Parties at the Eighth Session of the Conference of the States Parties (CSP-8) in 2003. The United States has worked hard in providing assistance to other countries in an effort to reach the goal of the action plan, which is to have all States Parties establish a national authority, enact implementing legislation, including penal measures, and establish administrative measures (e.g., submit declarations and related documentation required by the CWC). Follow-up plans were agreed to by CSPs-10 through 13, setting specific actions to ensure the fulfillment of Article VII obligations by all States Parties to the Convention.

The OPCW was established pursuant to the CWC, among other things, to “ensure the implementation of its provisions, including those for international verification of compliance with it.” Under Article VIII, the CSP is authorized to “review compliance” with the CWC, and is to “[t]ake 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.” Article XII, in turn, provides that the CSP may, inter alia, “restrict or suspend” a violator state’s “rights and privileges” under the CWC until compliance resumes. In “cases of particular gravity,” the CSP can bring the issue to the attention of the United Nations Security Council and General Assembly.

For its part, both as a matter of national policy and as a guide to national policy, the United States undertakes its own independent review—based upon the best available information, including intelligence information—of the compliance of CWC states parties with their obligations under the Convention. The United States believes States Parties should be held to their obligations under the CWC, and places a high premium upon their compliance both with specific detailed declaration and implementation provisions (e.g., Articles III, IV, V, and VII) and with the “general obligations” of Article I.
U.S. compliance assessments under the CWC focus upon the degree to which States Parties fulfill not only their detailed declaration and destruction/ conversion obligations under Articles III through V, but also their “general obligations” under Article I. Information tending to show that CW have actually been used, or that a State Party has helped or encouraged anyone to engage in any activity prohibited to a State Party under this Convention (e.g., by helping another country, or a non-state actor such as an international terrorist entity, acquire CW), would thus be highly relevant to an Article I compliance finding.

The United States also believes, because of its obligation under subparagraph 1(d) of Article I which requires States Parties not in any way to assist, encourage, or induce others to acquire CW, that States Parties are under an obligation to exercise due diligence in their trade in precursor chemicals and dual-use equipment that could be employed in the development of CW. In particular, States Parties should exercise restraint in their dealings with recipient entities, and should not undertake any potential CW-related transfers of technology or chemicals to any entity about which there is a reasonable suspicion that it is engaged, or seeks to be engaged, in the development, production, stockpiling, or use of CW in any way that would be prohibited to a State Party to the CWC.

Moreover, under paragraph 5 of Article V of the CWC, a State Party may not “construct any new CWPFs or modify any existing facilities for the purpose of CW production or for any other activity” prohibited by the CWC. This focus upon the purpose for which construction or modification occurs indicates that whether or not prohibited quantities of banned or controlled chemicals are actually present, the development and maintenance of a CW mobilization capability would amount to noncompliance with the Convention if it were undertaken with such CW applications in mind. In judging such CW mobilization intent, where more direct evidence is unavailable, a number of factors may be relevant, including the country’s record of CWC compliance in other respects; the accuracy and completeness of its declarations; its history of CW-related activity; the legitimate economic or commercial need for chemicals, the production of which requires the development of processes easily adaptable for CW production; and the degree to which production methods it adopts diverge in otherwise inexplicable ways from industry practice, or are uneconomical or implausibly inefficient in peaceful applications.

The United States notes that subparagraph 9(b) of Article II expressly permits possession of chemical agents for “[p]rotective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons.” By contrast, subparagraph 1(c) of Article I prohibits engaging in “any military preparations to use chemical weapons.” Part VI, section A of the Verification Annex spells out in more detail which activities are permitted under the CWC, making clear that a State Party may not “produce, acquire, retain, transfer or use” Schedule 1 chemicals unless they are applied to legitimate “research, medical, pharmaceutical or protective purposes,” and possessed only in small quantities “strictly limited to those which can be justified for such purposes,” but in no circumstances more than one metric ton. Part VI, Section C of the Verification Annex specifies allowable production quantities at declared and undeclared facilities, but it does not alter the basic rule that purpose is the touchstone of compliance with regard to research quantities of chemical agents. Appropriately scaled research undertaken for legitimate protective purposes against chemical weaponry is thus permitted, but research aimed at developing or improving weapons applications would constitute noncompliance. It should be noted, moreover, that under subparagraph 1(c) of Article I there is no requirement that “military preparations to use chemical weapons” actually involve chemical agents. Accordingly, research undertaken for the purpose of facilitating weapons uses rather than for protective purposes would constitute a violation of the CWC, regardless of whether or not chemical agents were involved. (Research using CW agent simulants or CW munitions development, for example, would thus present noncompliance problems if undertaken for weapons, rather than protective, purposes.)

The OPCW Technical Secretariat (TS) reported the following as of 29 July, 2011:

• Two States Parties had yet to designate a National Authority: Cape Verde and Timor-Leste.
• 100 States Parties had not adopted implementing legislation covering all key areas: Afghanistan, Antigua and Barbuda, The Bahamas, Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin, Bhutan, Bolivia, Botswana, Brunei Darussalam, Burundi, Cambodia, Cameroon, Cape Verde, Central African Republic, Chad, Chile, Comoros, Democratic Republic of the Congo, Republic of Congo, Cote d’Ivoire, Djibouti, Dominica, Dominican Republic, Ecuador, El Salvador, Equatorial Guinea, Eritrea, Gabon, The Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Iceland, Iraq, Jamaica, Jordan, Kenya, Kiribati, Kuwait, Kyrgyzstan, Lao People’s Democratic Republic, Lebanon, Liberia, Libya, Luxembourg, Malawi, Maldives, Mali, Marshall Islands, Micronesia, Mongolia, Morocco, Mozambique, Namibia, Nauru, Nepal, Nicaragua, Niger, Nigeria, Niue, Panama, Papua New Guinea, Paraguay, Philippines, Rwanda, Saint Kitts and Nevis, Samoa, San Marino, Sao Tome and Principe, Seychelles, Sierra Leone, Solomon Islands, Suriname, Swaziland, Tajikistan, Tanzania, Timor-Leste, Togo, Tonga, Trinidad and Tobago, Turkmenistan, Tuvalu, Uganda, United Arab Emirates, Uruguay, Vanuatu, Venezuela, Yemen, Zambia, and Zimbabwe.
• 67 States Parties that have not taken administrative measures to control transfers of scheduled chemicals: Afghanistan, Antigua and Barbuda, The Bahamas, Barbados, Belize, Benin, Bhutan, Botswana, Brunei Darussalam, Cameroon, Cape Verde, Central African Republic, Chad, Democratic Republic of the Congo, Republic of Congo, Djibouti, Dominica, Dominican Republic, El Salvador, Equatorial Guinea, Eritrea, Gabon, The Gambia, Grenada, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Iceland, Iraq, Kenya, Kuwait, Kyrgyzstan, Lebanon, Libya, Malawi, Maldives, Marshall Islands, Micronesia, Morocco, Mozambique, Namibia, Nauru, Nepal, Nicaragua, Niger, Papua New Guinea, Paraguay, Philippines, Rwanda, San Marino, Sao Tome and Principe, Sierra Leone, Solomon Islands, Suriname, Swaziland, Tanzania, Timor-Leste, Togo, Tonga, Trinidad and Tobago, Turkmenistan, Tuvalu, Vanuatu, Venezuela, and Yemen.
• Eighteen other States Parties have partially filled the requirements to control transfers of scheduled chemicals: Cambodia, Chile, Cote D’Ivoire, Georgia, Ghana, Guatemala, Jamaica, Jordan, Lao People’s Democratic Republic, Mali, Mongolia, Panama, Samoa, Seychelles, Tajikistan, Uganda, United Arab Emirates, and Zimbabwe.

As of December 31, 2011, there were 188 States Parties to the CWC, the latest being The Bahamas, which became a State Party on December 20, 2009. This report addresses additional U.S. compliance issues with four countries: Iran, Iraq, Libya, and the Russian Federation.

COUNTRY ASSESSMENTS

IRAN

FINDING

Based on available information, the United States cannot certify whether Iran has met its CWPF declaration obligations, destroyed its specialized CW equipment, transferred CW or retained an undeclared CW stockpile.

BACKGROUND

The convention entered into force for Iran on December 3, 1997. Iran made its initial declaration piecemeal in June 1998, January 1999, and March 1999.

The United States does not have sufficient information to be certain that some Iranian facilities may be involved in or retain the capability to produce CW agents, and likewise has insufficient information about the disposition of specialized CW equipment used in former CWPFs. The United States also has insufficient information about possible CW activity prior to EIF of the convention. There are reports that Iran transferred CW munitions to Libya in the late 1980s.

Compliance Discussions

On the margins of OPCW EC meetings in 2001 and 2004, the United States engaged the Iranian delegation about Iran’s CWC compliance. The outcome of the discussions did not completely resolve any of the issues.

COMPLIANCE ANALYSIS

Due to a combination of irregularities in the Iranian declaration and insufficient clarification from Iran, the United States cannot certify:

• that Iran has met its CWPF declaration obligations because of possible CW-capable infrastructure, to include the possibility of a clandestine offensive CW production capability dispersed among industrial chemical plants and at government-owned facilities;
• that it has destroyed its specialized CW equipment (Iran has probably failed to meet its CWC obligations by failing to declare and destroy some of its specialized CW production equipment);
• that it has not retained an undeclared CW stockpile: and
• that it may not have declared transfers of CW to Libya.

The OPCW TS has reported that Iran has fully implemented legislation under Article VII of the CWC that includes measures to control transfers of scheduled chemicals and penal provisions. As part of its obligations under paragraph 4 of Article X of the CWC, Iran submitted a declaration in 2003 acknowledging that it had a national protection program. Iran has submitted declarations annually since that time.

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