Article VI consists of 11 paragraphs. This Article sets forth the activities involving toxic chemicals and their precursors that are not prohibited by the Convention and the general obligations pertaining to verification of the production, processing and consumption of Schedule 1, 2 and 3 chemicals and of other chemical production facilities. (Schedules are discussed in detail after paragraph 2 of this Article.) Whereas Articles IV and V provide for destruction of existing chemical weapons and chemical weapons production facilities, Article VI establishes an international verification regime for chemical industry. It defines permitted activities in the chemical industry and provides for verification procedures to guard against clandestine production of chemical weapons.
Paragraph 1 of Article VI sets forth the activities involving toxic chemicals and their precursors that each State Party is permitted to continue under the Convention. Specifically, this paragraph states that each State Party has the right, subject to the provisions of the Convention, to develop, produce, otherwise acquire, retain, transfer and use toxic chemicals and their precursors for purposes not prohibited under the Convention.
("Toxic chemical" is defined in paragraph 2 of Article II. Pursuant to paragraph 9 of Article II, the term "purposes not prohibited under the Convention" means: industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes; protective purposes; 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 law enforcement including domestic riot control purposes.)
Paragraph 2 of Article VI sets forth the general obligation of each State Party to take the necessary measures to ensure that all activities related to toxic chemicals and precursors identified for application of verification measures are consistent with the Convention, including submitting such chemicals to international verification. Specifically, this paragraph states that each State Party shall adopt the necessary measures to ensure that toxic chemicals and their precursors are only developed, produced, otherwise acquired, retained, transferred, or used within its territory or in any other place under its jurisdiction or control for purposes not prohibited under the Convention. (As noted above, such purposes are defined in paragraph 9 of Article II.)
Paragraph 2 further states that to this end, and in order to verify that activities are in accordance with obligations under the Convention, each State Party shall subject toxic chemicals and their precursors listed in Schedules 1, 2 and 3 of the Annex on Chemicals, facilities related to such chemicals, and other facilities specified in the Verification Annex (i.e. other chemical production facilities specified in Part IX of the Verification Annex) that are located on its territory or in any other place under its jurisdiction or control, to verification measures as provided in the Verification Annex.
Note that paragraph 2 complements the obligation in paragraph 1 of Article VII to adopt the necessary measures to implement its obligations under the Convention. Note also that even though toxic chemicals that are not listed in the Schedules or not captured by the provisions regarding other chemical production facilities are not subject to this routine inspection regime, they are subject to challenge inspection (discussed in the analysis of Article IX). In addition, if such toxic chemicals are produced for chemical weapons purposes, they are subject to the chemical weapons verification and destruction regimes.
SCHEDULES
A large number of different chemicals are currently produced, processed and consumed in the international chemical industry by many different types of facilities. These chemicals and facilities vary in importance to the Convention based on their potential risk to the object and purpose of the Convention, i.e., principally, the prohibition and destruction of chemical weapons. The Convention contains three categories of chemicals (labeled Schedules 1, 2 and 3) that are based on increasing utility in civilian production and a decreasing perception of risk, e.g. their value as, or in producing, chemical weapons. Differing limits on production, verification regimes for the facilities that produce, process and consume the chemicals, and requirements for declarations are associated with each Scheduled chemical, and its associated facilities, as well as with a fourth category, other chemical production facilities, i.e. facilities that do not produce Scheduled chemicals but nevertheless pose a risk to the Convention on the basis of their potential to produce Scheduled chemicals but nevertheless pose a risk to the Convention on the basis of their potential to produce Scheduled chemicals (discussed in Part IX of the Verification Annex).
Specifically, the concept of risk is based on the toxicity of the chemical, its potential use in the chemical weapons production process, and the purpose for which it has been, is currently, or could be used. The placement of a chemical on a specific Schedule takes into account a number of different factors. Some factors specifically identified in the Annex on Chemicals for future additions include: the potential for use in an activity prohibited by the Convention; the volume of peaceful production; past history of use as a chemical weapon; and level of toxicity. Other factors considered by the negotiators included the potential for adverse impact on industry and the feasibility of verification. Schedule 1 contains chemicals considered to pose the most risk to the object and purpose of the Convention, e.g. chemical agents or their precursors (chemical building blocks) that have been developed, produced, stockpiled or used for chemical weapons purposes. These chemicals have little or no use for commercial purposes and thus are not produced commercially on a large–scale. Schedule 2 includes chemicals of lesser, but still significant, risk to the object and purpose of the Convention, e.g. precursors of Schedule 1 chemicals that are not produced in large quantities for commercial purposes that nevertheless have some commercial uses. Schedule 3 contains chemicals that pose some risk to the object and purpose of the Convention, e.g. chemicals that were once used as chemical warfare agents, that are precursors of Schedule 1 or 2 chemicals or that are produced commercially in large quantities.
Paragraph 3 of Article VI places restrictions on Schedule 1 chemicals and requires States Parties to subject Schedule 1 chemicals and facilities related to them to verification by the Technical Secretariat. Specifically, this paragraph states that each State Party shall subject Schedule 1 chemicals to the prohibitions on production, acquisition, retention, transfer and use as specified in Part VI of the Verification Annex. Note that paragraphs 1 through 6 of Part VI restrict these activities to the territory of States Parties, limit the purposes for which these activities can be conducted, limit the amounts of Schedule 1 chemicals that can be acquired, and require detailed declarations.
This paragraph further states that each State Party shall subject Schedule 1 chemicals and facilities specified in Part VI of the Verification Annex to systematic verification through on–site inspection and monitoring with on–site instruments in accordance with Part VI of the Verification Annex.
Paragraph 4 of Article VI requires States Parties to subject Schedule 2 chemicals and facilities related to them to verification by the Technical Secretariat. Specifically, this paragraph states that each State Party shall subject Schedule 2 chemicals and facilities specified in Part VII of the Verification Annex to data monitoring, i.e. submission of data by the State Party for evaluation by the Technical Secretariat, and on–site verification in accordance with Part VII of the Verification Annex.
Note that, pursuant to paragraph 31 of Part VII of the Verification Annex, beginning three years after entry into force of the Convention, Schedule 2 chemicals shall only be transferred to or received from States Parties. Pursuant to paragraph 32 of Part VII of the Verification Annex, during the interim three–year period in which transfers to States not a Party to the Convention are allowed, each State Party must adopt the necessary measures to ensure that the transferred chemicals are only used for purposes not prohibited under the Convention, including requiring end–use certificate for transfers of Schedule 2 chemicals to such States.
Paragraph 5 of Article VI requires States Parties to subject Schedule 3 chemicals and facilities related to them to verification by the Technical Secretariat. Specifically, this paragraph states that each State Party shall subject Schedule 3 chemicals and facilities specified in Part VIII of the Verification Annex to data monitoring and on–site verification in accordance with Part VIII of the Verification Annex.
Note that, pursuant to paragraph 26 of Part VIII of the Verification Annex, when transferring Schedule 3 chemicals to non–States Parties, each State Party shall adopt the necessary measures to ensure that the transferred chemicals shall only be used for purposes not prohibited by the Convention and, inter alia, shall require from the recipient State an end–user certificate. Finally, note that, pursuant to paragraph 27 of Part VIII of the Verification Annex, five years after the entry into force of the Convention, the Conference shall consider the need to establish other measures, i.e. additional restrictions, regarding transfers of Schedule 3 chemicals to non–States Parties.
Paragraph 6 of Article VI requires States Parties to subject other chemical production facilities to verification by the Technical Secretariat. These facilities do not produce Scheduled chemicals but have the capability to do so. Specifically, this paragraph states that each State Party shall subject facilities specified in Part IX of the Verification Annex to data monitoring and, unless decided otherwise by the Conference pursuant to paragraph 22 of Part IX of the Verification Annex, eventual on–site verification in accordance with Part IX of the Verification Annex.
In general, pursuant to paragraph 1 of Part IX of the Verification Annex, the other chemical production facilities that must be declared, and are subject to inspection, are plant sites that produce more than 200 metric tons of unscheduled discrete organic chemicals, or comprise one or more plants which produce more than 30 metric tons of an unscheduled discrete organic chemical containing the elements phosphorus, sulphur or fluorine ("PSF"). These elements are most commonly used in the production of chemical weapons. (Note that PSF plant sites producing 30–200 metric tons are subject only to declaration.) However, plant sites that exclusively produce explosives or hydrocarbons are specifically excluded pursuant to paragraph 2 of Part IX of the Verification Annex. Pursuant to paragraph 7 of Article VI, implementation of the data monitoring begins 30 days after entry into force of the Convention, while, pursuant to paragraph 22 of Part IX, implementation of the verification provisions begins in the fourth year after entry into force of the Convention, unless the Conference decides otherwise. (The purposes of these provisions are discussed in detail in Part IX.)
Paragraph 7 of Article VI provides for initial declarations regarding toxic chemicals and their precursors listed in Schedules 1, 2 and 3 of the Annex on Chemicals, facilities related to such chemicals, and other chemical production facilities. Specifically, this paragraph states that not later than 30 days after the Convention enters into force for it, each State Party shall make an initial declaration on relevant chemicals and facilities in accordance with the Verification Annex.
Paragraph 8 of Article VI provides for subsequent declarations regarding toxic chemicals and their precursors listed in Schedules 1, 2 and 3 of the Annex on Chemicals, facilities related to such chemicals, and other chemical production facilities. Specifically, this paragraph states that each State Party shall make annual declarations regarding the relevant chemicals and facilities in accordance with the Verification Annex.
Paragraph 9 of Article VI requires each State Party to provide access for these inspections. Specifically, this paragraph states that for the purpose of on–site verification, each State Party shall grant to the inspectors access to facilities as required in the Verification Annex. The purpose of this paragraph is to make clear that State Parties must provide access for all routine inspections of chemical industry.
Paragraph 10 of Article VI sets forth a corresponding protection for States Parties. Specifically, this paragraph states that in conducting verification activities, the Technical Secretariat shall avoid undue intrusion into the State Party's chemical activities for purposes not prohibited under the Convention and, in particular, abide by the provisions set forth in the Annex on the Protection of Confidential Information. ("Purposes not prohibited by the Convention" are defined in paragraph 9 of Article II.)
Paragraph 11 of Article VI applies the prohibition on hampering the economic or technological development of States Parties contained in paragraph 1 of Article XI. Specifically to chemical industry verification. Specifically, this paragraph states that the provisions of Article VI shall be implemented in a manner which avoids hampering the economic or technological development of States Parties, and international co-operation in the field of chemical activities for purposes not prohibited under the Convention, including the international exchange of scientific and technical information and chemicals and equipment for the production, processing or use of chemicals for purposes not prohibited under the Convention. Although paragraph 1 of Article XI includes chemical industry verification, this provision was added to further alleviate concerns of developing countries concerning the impact of the Convention on their chemical industries by highlighting the application of paragraph 1 of Article XI to that verification regime.