ARTICLE–BY–ARTICLE ANALYSIS
OF THE ANNEX ON CHEMICALS
The Annex on Chemicals contains two sections –– Section A (Guidelines for Schedules of Chemicals) and Section B (Schedules of Chemicals). Section A consists of three paragraphs setting forth criteria by which toxic chemicals or precursors are to be evaluated for inclusion in Schedules 1, 2, or 3, respectively. ("Toxic chemicals" and "precursors" are defined in paragraphs 2 and 3 of Article II, respectively. Schedules are discussed after paragraph 2 of Article VI.) Chemicals already on the Schedules are listed in Section B. It is understood that in the future, new or currently unknown chemicals that meet these criteria may be proposed for addition to the Schedules. Note that proposals for adding chemicals to a Schedule can be adopted by the "simplified process" for changes to the Annexes pursuant to paragraphs 4 and 5 of Article XV. Under these procedures, the Executive Council will decide which chemicals are added, unless objected to by a State Party, in which case the Conference will decide.
Paragraph 1 of Section A sets forth, in three subparagraphs, the criteria that shall be taken into account in considering whether a toxic chemical or precursor should be included in Schedule 1:
(a) It has been developed, produced, stockpiled or used as a chemical weapon as defined in Article II, i.e. toxic chemicals that are not intended for permitted purposes;
(b) It otherwise poses a high risk to the object and purpose of the Convention by virtue of its high potential for use in prohibited activities because one or more of the following conditions are met:
(i) It possesses a chemical structure closely related to that of other toxic chemicals listed in Schedule 1, and has, or can be expected to have, comparable properties;
(ii) It possesses such lethal or incapacitating toxicity as well as other properties that would enable it to be used as a chemical weapon; or
(iii) It may be used as a precursor in the final single technological stage of production of a toxic chemical listed in Schedule 1, regardless of whether such a stage took place in facilities, in munitions or elsewhere (the meaning of "final technological stage" is contained in paragraph 8(a)(i) of Article II);
(c) It has little or no use for purposes not prohibited under the Convention. (Such purposes are defined in paragraph 9 of Article II.)
Note that while each of these criteria must be taken into account, a specific chemical does not have to meet all of the criteria to be added to Schedule 1.
Paragraph 2 of Section A outlines, in four subparagraphs, the criteria to be taken into account in considering whether the following types of chemicals should be included on Schedule 2: toxic chemicals not listed on Schedule 1; precursors to chemicals listed in Schedule 1; and precursors to chemicals listed in part A of Schedule 2 (i.e. Schedule 2 toxic chemicals). (As noted above, these are the types of chemicals that are currently on Schedule 2, although the list is not an inclusive one of such chemicals.) The criteria are:
(a) It poses a significant risk to the object and purpose of the Convention because it possesses such lethal or incapacitating toxicity as well as other properties that could enable it to be used as a chemical weapon;
(b) it may be used as a precursor in one of the chemical reactions at the final stage of formation of a chemical listed in Schedule 1 or part A of Schedule 2;
(c) it poses a significant risk to the object and purpose of the Convention by virtue of its importance in the production of a chemical listed in Schedule 1 or part A of Schedule 2;
(d) it is not produced in large commercial quantities for purposes not prohibited under the Convention.
Note that the principal differences in criteria between Schedule 2 and Schedule 1 are: less risk to the objectives of the Convention ("significant" versus "high"); further removed from the final stage of production ("precursor" or "importance to production" versus only "precursor"); and at least some commercial value in small amounts ("not produced in large commercial quantities" versus "little or no use"). Note also that, as with the other Schedules, while each of these criteria must be taken into account, a specific chemical does not have to meet all of the criteria to be added to Schedule 2.
Paragraph 3 of Section A lists, in four subparagraphs, the criteria to be used in considering whether a toxic chemical or precursor, not listed in other Schedules, should be included in Schedule 3. The criteria are:
(a) It has been produced, stockpiled or used as a chemical weapon;
(b) it poses otherwise a risk to the object and purpose of the Convention because it possesses such lethal or incapacitating toxicity as well as other properties that might enable it to be used as a chemical weapon;
(c) it poses a risk to the object and purpose of the Convention by virtue of its importance in the production of one or more chemicals listed in Schedule 1 or part B of Schedule 2, i.e. Schedule 2 toxic chemicals;
(d) it may be produced in large commercial quantities for purposes not prohibited under the Convention.
Note that the principal differences in criteria between Schedule 3 and Schedule 2 are: even less risk to the objectives of the Convention ("risk" versus "significant risk"); even further removed from the final stage of production ("importance to production" only versus "precursor" or "importance to production"); and significant commercial value in large amounts ("produced" versus "not produced" in large commercial quantities). Note also that, unlike Schedule 2 chemicals, prior use as a chemical weapon is a criteria for Schedule 3 chemicals. Finally, note that, as with the other Schedules, while each of these criteria must be taken into account, a specific chemical does not have to meet all of this criteria to be added to Schedule 3.
Section B of the Annex on Chemicals lists individual chemicals and chemical families comprising each Schedule. This section states that for the purpose of implementing the Convention, these Schedules identify chemicals for the application of verification measures according to the provisions of the Verification Annex. (Part VI of the Verification Annex corresponds to Schedule 1, Part VII corresponds to Schedule 2, and Part VIII corresponds to Schedule 3.) This section further notes that pursuant to paragraph 1(a) of Article II (i.e., the definition of what toxic chemicals and their precursors constitute chemical weapons), these Schedules do not constitute a definitive definition of chemical weapons. In other words, as noted previously, chemical weapons are not limited to chemicals listed on the Schedules.
Finally, this section notes that whenever reference is made to groups of dialkylated chemicals, followed by a list of alkyl groups in parentheses, all chemicals possible by all possible combinations of alkyl groups listed in the parentheses are considered as listed in the respective Schedule as long as they are not explicitly exempted.
Essentially, Schedule 1 consists of chemicals that have actually been developed, produced, stockpiled or used as chemical weapons, chemicals that are immediate precursors to such chemical weapons, and all other chemicals that pose a high potential for use as chemical weapon precursors and have no significant civilian use. (In this regard, procedures for determining toxicity are expected to be developed by the Preparatory Commission.)
Schedule 2 chemicals include toxic chemicals and their immediate precursors that are produced, generally in small commercial quantities for peaceful purposes by industry but nevertheless pose a significant risk to the objectives of the Convention because of their potential as chemical weapons.
Schedule 3 chemicals are chemicals that typically are produced in large commercial quantities, but also may have been a chemical weapon in the past or pose a risk to the objectives of the Convention because of their toxicity or importance as precursors to Schedule 1 or 2 chemicals.
Schedule 2 is divided into parts A and B. Chemicals identified under part A are highly toxic chemicals which themselves could be used as chemical weapons. Chemicals listed under part B are precursors to toxic chemicals. Part A chemicals require declaration and verification at lower production thresholds than part B chemicals. In addition, this section provides that the chemical BZ is subject to lower thresholds for declaration and verification than other part A chemicals, as specified in Part VII of the Verification Annex. BZ, which was weaponized (i.e. actually filled into munitions and manufactured to be stockpiled as a chemical weapon), is considered to pose a higher risk than other part A Schedule 2 chemicals but in light of its commercial utility was nevertheless placed on Schedule 2 rather than Schedule 1. Schedules 1 and 3 were also broken into parts A and B identifying chemicals as toxic chemicals or precursors; however, this was done to parallel the structure in Schedule 2 and not to provide differing verification regimes.