ARTICLE–BY–ARTICLE ANALYSIS OF
ARTICLE I - GENERAL OBLIGATIONS
Article I consists of five paragraphs that set forth the basic obligations of the States Parties to the Convention. The Article requires States Parties: to destroy their chemical weapons, chemical weapons production facilities, and certain chemical weapons abandoned by them; to not acquire or reacquire chemical weapons; to not assist anyone else in acquiring chemical weapons; to not use chemical weapons; and to not militarily prepare to use chemical weapons. In addition, Article I requires that each State Party undertake not to use riot control agents as a method of warfare.
Paragraph 1 of Article I contains, in three subparagraphs, the most fundamental prohibitions of the Convention. The prohibitions are phrased as undertakings "never under any circumstances" to engage in certain activities related to chemical weapons. ("Chemical weapons" are defined in paragraph 1 of Article II.) Thus, the prohibitions apply to a State Party even if chemical weapons are used against it and even if those chemical weapons are used by a State not Party to the Convention, i.e. even "retaliatory use" of chemical weapons is banned. Moreover, the prohibition on the use of chemical weapons extends beyond solely their use in international armed conflicts, i.e. chemical weapons may not be used in any type of situation, including purely domestic conflicts, civil wars or state-sponsored terrorism. As such, this article closes a loophole in the Geneva Protocol of 1925, which covered only uses in war, i.e. international armed conflicts. Note that the phrase "never under any circumstances" reflects a similar phrase in Article I of the Biological Weapons Convention.
Subparagraph 1(a) states that each State Party to the Convention undertakes never under any circumstances to develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone. This means that, inter alia, every State Party is prohibited from retaining its chemical weapons, from obtaining chemical weapons through any means, and from giving its chemical weapons to anyone else.
In subparagraphs 1(b) and 1(c), the States Parties undertake never under any circumstances to use chemical weapons or to engage in any military preparations to use chemical weapons. Preparation for use may include planning, organization and training for the purpose of using chemical weapons. This provision forbidding military preparations to use chemical weapons was added to further restrict the possibilities for a clandestine or breakout chemical weapons capability. The prohibitions on use, and military preparations to use, chemical weapons codify the central desire of the States Parties that chemical weapons never again be used. Note, however, that pursuant to paragraph 2 of Article X, States Parties are specifically allowed to conduct research into, develop, produce, acquire, transfer or use means of protection against chemical weapons.
In subparagraph 1(d) the States Parties undertake never under any circumstances to assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under the Convention. This means that a State Party is not allowed to help another State, non-government entity, such as a corporation, or individual do anything prohibited to a State Party under the Convention. Accordingly, this provision ensures that a State Party cannot legally circumvent its obligations under the Convention by working through other entities.
JURISDICTION AND CONTROL
Paragraphs 2 and 4 of Article I, as well as other provisions in the Convention, use a common formula to indicate the scope of a State Party's obligations with regard to treaty-related objects such as chemical weapons -- "owns or possesses, or that are located in any place under [the State Party's] jurisdiction or control." This formula differs from that used in Article II of the Biological Weapons Convention -- "in [a State Party's] possession or under [a State Party's] jurisdiction or control," i.e. it adds the concept of "ownership" and links the concepts of "jurisdiction" and "control" to places rather than objects. The formula in the Convention represents an evolution of the Biological Weapons Convention formula, and is designed to be as broad as possible while at the same time using legal terms that are relatively precise and well-defined under international law.
The first two elements of the Convention's formula -- "ownership" and "possession" -- are well-defined legal concepts that pertain to the legal and physical relationships, respectively, between a State Party and the objects in question. These terms represent the basic relationships that are likely to be subject to the Convention. Nonetheless, in order to broaden each State Party's obligations as far as possible, the drafters also included the concepts of "jurisdiction" and "control."
The application of the concepts of "jurisdiction" and "control" to an object is less well-defined under international law than "ownership" and "possession". This became clear during the negotiations when, for example, no agreement could be reached on whether a State Party "controls" a chemical agent developed by a company that is partly owned by the State Party but located in another State Party. However, as discussed below, the concepts of "jurisdiction" and "control" by a State Party over places are relatively well-defined and agreed under international law. Accordingly, to minimize disputes and ambiguities with regard to the scope of obligations, the drafters decided to apply these concepts to the places in which the treaty-related objects are located rather than the objects themselves. The result is that each States Party also incurs obligations with regard to all treaty-related objects located in places over which the State Party exercises legal or physical control, regardless of who owns or possesses the objects.
Since the State Party could, and indeed probably will, own and/or possess treaty-related objects located in places under its jurisdiction and control, there is some overlap between the various concepts. However, under the formula as a whole, the overall responsibility of a State Party is for all treaty-related objects located in places under its jurisdiction or control, as well for any other treaty-related objects, located outside of these places, that a State Party legally owns or physically possesses.
The Convention uses two formulations for expressing the principal geographical scope of the obligations undertaken by State Parties -- "any place under [a State Party's] jurisdiction or control" and "territory or any other place under [a State Party's] jurisdiction or control." The two formulations evolved from different starting points during the negotiation of the Convention, but in their final form express the same geographical scope.
The term "any place under [a State Party's] jurisdiction or control" means any place over which a State Party exercises legal or physical control of activities occurring in that place. Places under a State Party's jurisdiction include the territory of the State Party, ships and aircraft registered under the flag of the State Party, and, in certain cases, the territory of another State. Places under a State Party's control include military and government facilities and bases located outside the territory of a State Party, and occupied territory. Note that for the United States the term "territory" means the various States, the District of Columbia, and the territories and possessions of the United States.
Paragraph 2 of Article I sets forth the basic obligation to destroy existing chemical weapons. It states that each State Party undertakes to destroy chemical weapons it owns or possesses, or that are located in any other place under its jurisdiction or control, in accordance with the provisions of the Convention. Article IV and Part IV(A) of the Verification Annex set forth the detailed provisions relating to the destruction of chemical weapons. Part IV(B) of the Verification Annex sets forth separate detailed provisions relating to special types of chemical weapons -- old chemical weapons and abandoned chemical weapons.
Paragraph 3 of Article I addresses chemical weapons that have been abandoned by one State Party on the territory of another State Party. ("Abandoned chemical weapons" are defined in paragraph 6 of Article II.) Paragraph 3 states that each State Party undertakes to destroy all chemical weapons it abandoned on the territory of another State Party, in accordance with the provisions of the Convention. As noted above, specific provisions addressing reporting and destruction of abandoned chemical weapons are contained in Part IV(B) of the Verification Annex.
Note that, read together, paragraphs 2 and 3 create a joint and severable obligation for chemical weapons abandoned by a State Party on the territory of another State Party. In other words, the abandoning State Party and the territorial State Party each have a separate, full, legal obligation to destroy the chemical weapons; each such obligation is not mitigated by the action or refusal to act of the other State Party. Nonetheless, the provisions of Part IV(B) of the Verification Annex place a greater share of the responsibility on the abandoning State Party. Pursuant to paragraph 15 of Part IV(B), the abandoning State Party is specifically charged with providing all financial and technical assistance, while the territorial State Party is specifically responsible only for cooperating with the abandoning State Party.
Note also that, pursuant to paragraph 1(b)(iii) of Article III, while a State Party must declare all known chemical weapons abandoned on a State's territory after 1 January 1925, in general, a State Party is not responsible for destroying chemical weapons that it abandoned on the territory of States that are not Parties to the Convention. If, however, the place where the chemical weapons were abandoned in the non-State Party is currently under the jurisdiction or control of the State Party (e.g. a foreign military base), the State Party is obligated to destroy these chemical weapons pursuant to paragraph 2 of Article I.
Paragraph 4 of Article I sets forth the basic obligation to destroy chemical weapons production facilities. (Such facilities are defined in paragraph 8 of Article II.) Paragraph 4 states that each State Party undertakes to destroy any chemical weapons production facilities it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of the Convention. Article V and Part V of the Verification Annex set forth the detailed provisions relating to chemical weapons production facilities.
Note that paragraph 13 of Article V allows, in exceptional cases of compelling need, for the conversion and use of chemical weapons production facilities for purposes not prohibited under the Convention (i.e. for production of chemicals that are of less risk to the object and purpose of the Convention and then strictly for peaceful, commercial purposes), if agreed by the governing body of the Convention -- the Conference of the States Parties. Such converted facilities, however, unlike other commercial facilities, are subject to continuous monitoring and on-site inspection.
Paragraph 5 of Article I addresses riot control agents, which are defined separately from chemical weapons. It states that each State Party undertakes not to use riot control agents as a method of warfare. ("Riot control agents" are defined in paragraph 7 of Article II.) Note that paragraph 1(e) of Article III requires each State Party to submit declarations of those riot control agents it holds for riot control purposes.