ARTICLE–BY–ARTICLE ANALYSIS OF
ARTICLE II – DEFINITIONS AND CRITERIA
Article II consists of 12 paragraphs setting forth definitions for use in the Articles and Annexes of the Convention. Additional definitions are found in paragraph 1 of Article X, Part I of the Verification Annex, and paragraph 12 of Part IV(A) of the Verification Annex.
Paragraph 1 of Article II defines "chemical weapons" for purposes of the Convention. It states that "chemical weapons" means the following, together or separately:
(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under the Convention, as long as the types and quantities are consistent with such purposes;
(b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (a), which would be released as a result of the employment of such munitions and devices;
(c) Any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (b).
Subparagraph 1(a) means that all toxic chemicals and their precursors are chemical weapons, except where they are intended for purposes not prohibited under the Convention and provided further that the types and quantities of such toxic chemicals and precursors are consistent with such permitted purposes. The intention of this broad definition is to prohibit all known and unknown, and future toxic chemicals in types and quantities that cannot be justified for permitted purposes. Thus novel, as well as traditional chemical agents, are captured by this definition. The terms "toxic chemical," "precursor" and the phrase "purposes not prohibited under this Convention" are defined below.
Subparagraphs 1(b) and 1(c) mean that munitions and devices (e.g. empty spray tanks and canisters) that have been designed to cause death or other harm through the release of toxic chemicals and their precursors, or any equipment specifically designed for use directly in connection with the employment of such munitions and devices, are also "chemical weapons" for purposes of the Convention. As such, all provisions that apply to "chemical weapons" apply to such munitions, devices and equipment. Such items must be declared and destroyed as part of the declaration and destruction of chemical weapons.
Note that the term "directly" in subparagraph 1(c) is intended to mean "solely." Thus, dual–use munitions and their components are not considered to be chemical weapons provided they do not otherwise meet this definition. For example, dual–use munitions may be used to disperse chemicals not prohibited by the Convention, such as smoke, provided the munitions have not been specifically designed to cause death through the release of toxic chemicals. Also, dual–use weapons systems such as artillery or aircraft that are capable of employing chemical weapons are not covered by this definition, and so are not subject to the destruction requirements.
Paragraph 2 of Article II defines "toxic chemical" as any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This paragraph further states that this includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere. The wording of this definition is intended to cover toxins, as well as organic and inorganic chemicals, and chemicals produced by binary and multicomponent weapons.
Paragraph 2 also notes, parenthetically, that the toxic chemicals that have been identified for the application of verification measures are listed in Schedules in the Annex on Chemicals. Note that the Schedules contain, inter alia, the chemical agents traditionally and/or currently used in chemical weapons, but that it is paragraphs 1 and 2 of Article II, not a listing on the Schedules, that define which chemicals are considered to be "chemical weapons" for purposes of the Convention. This ensures that the prohibitions and verification measures related to chemical weapons are not limited to only those chemicals listed in the Schedules. (Schedules are discussed in detail after paragraph 2 of Article VI.) However, most States Parties will likely focus on the Schedules to determine which chemical agents and their precursors are considered to be chemical weapons.
Paragraph 3 of Article II defines "precursor" as any chemical reactant which takes part at any stage in the production by whatever method of a toxic chemical, including any key component of a binary or multicomponent chemical system. This paragraph also states parenthetically, like toxic chemicals under paragraph 2, that precursors which have been identified thus far for the application of verification measures are listed in Schedules contained in the Annex on Chemicals.
The Convention uses the term "key component," as shorthand for "key component of binary or multicomponent chemical systems." Paragraph 4 of Article II defines this term as the precursor which plays the most important role in determining the toxic properties of the final product and reacts rapidly with other chemicals in the binary or multicomponent system. Note that "key components" must be declared pursuant to paragraph 2(e) of Part IV(A) of the Verification Annex.
Paragraph 5 of Article II defines "old chemical weapons" as:
(a) Chemical weapons which were produced before 1925; or
(b) Chemical weapons produced in the period between 1925 and 1946 that have deteriorated to such extent that they can no longer be used as chemical weapons.
Detailed provisions regarding these chemical weapons are contained in Section B of Part IV(B) of the Verification Annex. The date of 1925 corresponds to the signing of the Geneva Protocol of 1925 and represents the approximate end of production of World War I era chemical weapons. The dates 1925 to 1946 are the approximate production dates of World War II era chemical weapons.
Paragraph 6 of Article II defines "abandoned chemical weapons" as chemical weapons including old chemical weapons, abandoned by a State after 1 January 1925 on the territory of another State without the consent of the latter. Detailed provisions regarding these chemical weapons are contained in Section C of Part IV(B) of the Verification Annex.
Note that in paragraph 3 of Article I each State Party undertakes to destroy all chemical weapons it has abandoned on the territory of another State Party. In addition, pursuant to paragraph 2 of Article I, each State Party undertakes to destroy all chemical weapons located in any place under its jurisdiction or control, i.e., inter alia, its territory. This undertaking is without regard to whether the chemical weapons are "owned" or "possessed" by the State Party or were abandoned by another State. Therefore, in those cases where the territorial State and the abandoning State are both State Parties, both have an obligation to destroy the chemical weapons. Paragraph 15 of Part IV(B) of the Verification Annex does provide, however, that the abandoning State Party in these cases shall have the primary responsibility for technical and financial assistance.
Paragraph 7 of Article II defines "riot control agent" as any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure. Paragraph 1(e) of Article III requires declaration of the names, structural formulae and Chemical Abstracts Service registry numbers of each chemical held for riot control purposes.
Paragraph 8 of Article II defines a "chemical weapons production facility" as essentially those facilities designed, constructed or used for the production and filling of chemical weapons, but contains several specific exceptions. Subparagraph 8(a) states that a chemical weapons production facility means any equipment, as well as any building housing such equipment, that was designed, constructed or used at any time since 1 January 1946, as part of the stage in the production of chemicals ("final technological stage") where the material flows would contain, when the equipment is in operation: (1) any chemical listed in Schedule 1 in the Annex on Chemicals, or (2) any other chemical that has no use, above one metric ton per year on the territory of a State Party or in any other place under the jurisdiction or control of a State Party, for purposes not prohibited under the Convention, but which can be used for chemical weapons purposes.
The purpose of the latter provision is to ensure that the definition captures facilities that produce not only Schedule 1 chemicals, i.e. chemicals that have traditionally been used as chemical weapons and key precursors, but also any other current or future chemicals that have no legitimate commercial or other non–chemical weapons related purpose above one metric ton per year, but can be used as chemical weapons.
The definition further states that a chemical weapons production facility also means any equipment, as well as any building housing such equipment, that was designed, constructed or used at any time since 1 January 1946 for filling chemical weapons, including, inter alia, the filling of chemicals listed in Schedule 1 into munitions, devices or bulk storage containers; the filling of chemicals into containers that form part of assembled binary munitions and devices or into chemical submunitions that form part of assembled unitary munitions and devices, and the loading of the containers and chemical submunitions into the respective munitions and devices.
It is understood that this definition of chemical weapons production facility refers only to that portion of the facility that houses the final production or filling phases, not to the entire facility.
Note that the cutoff date of 1 January 1946 was determined on the basis of likely availability of information on chemical weapons production facilities and on their relevance to the object and purpose of the Convention. State Parties are considered to have significantly less information on pre–1946 facilities and such facilities are considered to be of less concern because of the nature of the chemical weapons produced. Note also, however, that the phrase "at any time since 1 January 1946" means that even if a facility is no longer producing or filling chemical weapons, or even no longer exists, it is still a chemical weapons production facility subject to declaration and/or destruction so long it was designed, constructed or used at some point after 1 January 1946.
The exceptions to these main provisions are intended to exclude destruction of facilities conducting permitted activities (e.g. research and military purposes not prohibited) and producing amounts of Schedule 1 chemicals that are not significant. Subparagraph 8(b) provides, first, that a chemical weapons production facility does not mean any facility having a production capacity for synthesis of chemicals specified in the above provisions (i.e. Schedule 1 chemicals and chemicals that have no legitimate commercial or other non–chemical weapons related purpose, and can be used as chemical weapons) that is less than one metric ton. (Production capacity is defined in paragraph 10 of Article II.)
Second, a chemical weapons production facility does not mean any facility in which a chemical specified in the above provisions is or was produced as an unavoidable by–product of activities for purposes not prohibited under the Convention, provided that the chemical does not exceed three per cent of the total product and that the facility is subject to declaration and inspection under the Verification Annex, i.e. the facility is subject to declaration and inspection as some other type of facility, e.g. a Schedule 2 producer.
The purpose of this second exception, contained in part (ii) of paragraph 8(b), is to exempt from destruction facilities that produce Schedule 2, 3 and other permitted chemicals, but that also produce in small quantities as a by–product of other processes Schedule 1 chemicals and chemicals that have no legitimate commercial or other non–chemical weapons related purpose, but can be used as chemical weapons. Such facilities are still subject to declaration and verification in accordance with the regimes for the chemicals that constitute their primary production.
Finally, this subparagraph states that a chemical weapons production facility does not mean the single small–scale facility for production of chemicals listed in Schedule 1 for purposes not prohibited under the Convention as referred to in Part VI of the Verification Annex. Note that the single small–scale facility is a facility with limited capacity that a State Party is allowed to have for producing small amounts of Schedule 1 chemicals for permitted purposes, such as developing protection against chemical weapons, and medical and pharmaceutical research. (Other facilities that produce very small amounts of Schedule 1 chemicals are also allowed and are specified in paragraphs 10 through 12 of Part VI of the Verification Annex.)
Paragraph 9 of Article II defines, in four subparagraphs, the phrase "purposes not prohibited under this Convention." This phrase is important because it forms the basis for many exceptions to obligations or prohibited activities. This paragraph defines such purposes as:
(a) Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes;
(b) Protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons;
(c) Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare; and
(d) Law enforcement including domestic riot control purposes.
This provision means that toxic chemicals and their precursors that are used for one or more of these enumerated purposes are not chemical weapons, so long as they are of a type and quantity consistent with these permitted purposes. U.S. armed forces will still be allowed chemicals for protective purposes (e.g. gaining confidence in chemical defense training and equipment and using riot control agents for chemical defense training), as well as for purposes not dependent upon the toxic properties of the chemicals as a method of warfare, such as the use of toxic chemicals as fuels, lubricants or cleaners. Finally, States Parties will still be allowed to use toxic chemicals for law enforcement. Note, however, that the type of toxic chemical used must be consistent with the purpose. For example, nerve gas cannot be used for capturing escaping prisoners.
Paragraph 10 of Article II defines the term "production capacity," which is used, inter alia, in the definitions of facilities that are not chemical weapons production facilities (paragraph 8(b)(i) of Article II), the detailed declarations for chemical weapons production facilities (paragraph 1(f) of Part V of the Verification Annex), the destruction schedule for chemical weapons production facilities (paragraph 30 of Part V of the Verification Annex), and the declarations for chemical industry (Part VI of the Verification Annex). This paragraph states that production capacity means the annual quantitative potential for manufacturing a specific chemical based on the technological process actually used or, if the process is not yet operational, planned to be used at the relevant facility. This paragraph further states that production capacity shall be deemed to be equal to the nameplate capacity or, if the nameplate capacity is not available, to the design capacity.
Finally, this paragraph states that the nameplate capacity is the product output under conditions optimized for maximum quantity for the production facility, as demonstrated by one or more test–runs, and the design capacity is the corresponding theoretically calculated product output.
Paragraph 11 of Article II defines the term "Organization" as the Organization for the Prohibition of Chemical Weapons established pursuant to Article VIII. Pursuant to paragraph 4 of Article VIII, it consists of the Conference of the States Parties ("the Conference") (the governing body containing all States Parties), the Executive Council (the executive authority containing 41 States Parties), and the Technical Secretariat (the international body responsible for verification, and technical, emergency and humanitarian assistance in cases of use of chemical weapons).
Paragraph 12 of Article II defines three terms, in three subparagraphs, for the purposes of Article VI, i.e. the verification measures for chemical industry.
Subparagraph 12 (a) states that the term "production" of a chemical means its formation through chemical reaction.
Subparagraph 12 (b) states that the term "processing" of a chemical means a physical process, such as formulation, extraction and purification, in which a chemical is not converted into another chemical.
Subparagraph 12 (c) states that the term "consumption" of a chemical means its conversion into another chemical via a chemical reaction.
Note that these terms are not actually used in Article VI, but rather in the detailed provisions for the Article contained in Parts VI through IX of the Verification Annex. Placement of these definitions in Article II highlights their importance and excludes them from technical or administrative changes, pursuant to Article XV, and from reservations, pursuant to Article XXII.