ARTICLE–BY–ARTICLE ANALYSIS OF
ARTICLE X – ASSISTANCE AND PROTECTION AGAINST CHEMICAL WEAPONS
Article X consists of eleven paragraphs. This Article establishes procedures for State Party requests, and possible responses to such requests, for assistance and protection when chemical weapons have been used against it, when riot control agents have been used against it as a method of warfare, or when it is threatened by actions or activities of any State that are prohibited for States Parties by Article I, i.e. the basic prohibitions with regard to chemical weapons, such as the acquisition of chemical weapons.
Paragraph 1 of Article X defines "assistance" for the purposes of this Article as meaning the coordination and delivery to States Parties of protection against chemical weapons, including, inter alia, detection equipment and alarm systems; protective equipment; decontamination equipment and decontaminants; medical antidotes and treatments; and any advice on any of these protective measures. Note that the resources contemplated in this Article include a data bank with public information on protection against chemical weapons, expert advise from the Technical Secretariat on protective capacity, bilateral assistance, a voluntary fund for assistance, and other general types of assistance.
Paragraph 2 of Article X states that nothing in the Convention shall be interpreted as impeding the right of a State Party to conduct research into, develop, produce, acquire, transfer or use any means for protection against chemical weapons for purposes not prohibited under the Convention. The purpose of this paragraph is to make clear that programs for the continuing development of defenses against chemical weapons are permitted under the Convention, although information on them must be reported pursuant to paragraph 4 of this Article.
Paragraph 3 of Article X states that each State Party undertakes to facilitate, and has the right to participate in, the fullest possible exchange of equipment, material, and scientific and technological information concerning means of protection against chemical weapons. Note that paragraph 2 (b) of Article XI contains similar language regarding chemistry in general.
Paragraph 4 of Article X requires that, for the purposes of increasing the transparency of national programs related to protective purposes, each State Party must provide to the Technical Secretariat annually information on its program, in accordance with procedures to be considered and approved by the Conference pursuant to paragraph 21(i) of Article VIII, i.e. using guidelines prepared by the Preparatory Commission.
The purpose of this paragraph is to increase confidence that programs for protective purposes are not being used for prohibited activities, such as the development of new chemical weapons. (Pursuant to paragraph 9 (b) of Article II, "protective purposes" are those purposes directly related to protection against toxic chemicals and to protection against chemical weapons.)
Paragraph 5 of Article X requires the Technical Secretariat to establish, not later than 180 days after the Convention's entry into force, and maintain a data bank for the use of any requesting State Party containing freely available information, i.e. from open public sources, on the various means of protection against chemical weapons, as well as such information as may be provided by States Parties. This paragraph also requires the Technical Secretariat, within the resources available to it, to provide expert advice and assistance to a State Party in identifying how its programs for the development and improvement of a protective capacity against chemical weapons could be implemented.
Paragraph 6 of Article X states that nothing in the Convention shall be interpreted as impeding the right of States Parties to request and provide assistance bilaterally and to conclude individual agreements with other States Parties concerning the emergency procurement of assistance. The purpose of this paragraph is to make clear that the provisions of Article X are not intended to replace bilateral forms of assistance, but to complement them. Note that, when requested, the Technical Secretariat will register such bilateral agreements concerning assistance, pursuant to paragraph 39(c) of Article VIII.
Paragraph 7 of Article X requires each State Party to provide assistance through the Organization, and to that end to elect one or more of the measures set forth in three subparagraphs. Subparagraph 7 (a) allows a State Party to meet its obligation by contributing to the voluntary fund for assistance to be established by the Conference at its first session. Note that this fund is administered by the Technical Secretariat, pursuant to paragraph 38 (c) of Article VIII, and supervised by the Executive Council, pursuant to paragraph 34 (b) of Article VIII.
Subparagraph 7 (b) allows a State Party to conclude, if possible not later than 180 days after the Convention enters into force for it, agreements with the Organization concerning the procurement, upon demand, of assistance. Note that these agreements are concluded by the Executive Council, pursuant to paragraph 34 (c) of Article VIII, and, when requested, registered by the Technical Secretariat, pursuant to paragraph 39 (c) of Article VIII.
Finally, subparagraph 7 (c) allows a State Party to declare, not later than 180 days after entry into force for it, the kind of assistance it might provide in response to an appeal by the Organization. This subparagraph further states that if a State Party subsequently is unable to provide the assistance envisaged in its declaration, it is still under the obligation to provide assistance in accordance with this paragraph. This means that a State Party is not bound to provide the type of assistance it declares, but it is bound to provide some type of assistance of its own choosing. Note that the Technical Secretariat is tasked with compiling these declarations, pursuant to paragraph 39 (c) of Article VIII.
This paragraph represents a compromise between negotiating states desiring guaranteed assistance from the Technical Secretariat and all States Parties, and other negotiating states, including the U.S., desiring only voluntary assistance by States Parties made available through the Technical Secretariat. Note that, pursuant to paragraph 39(b) of Article VIII, the Technical Secretariat will coordinate the establishment and maintenance of the permanent stockpiles of emergency and humanitarian assistance promised under paragraphs 7 (b) and (c).
Paragraph 8 of Article X sets out the circumstances in which a State Party may request and receive assistance under Article X. Specifically, this paragraph states that each State Party has the right to request and to receive assistance and protection against the use or threat of use of chemical weapons if the State Party considers that one of three conditions is met. This paragraph, however, makes receipt of assistance subject to the procedures set forth in paragraphs 9, 10 and 11 of this Article, i.e. forwarding of the request to those States Parties that have volunteered to provide assistance, Executive Council approval of supplemental assistance by the Technical Secretariat, and emergency assistance by the Technical Secretariat from resources approved a priori by the Conference. The conditions for requesting and receiving assistance are: that the State Party considers that chemical weapons have been used against it; that riot control agents have been used against it as a method of warfare; or that it is threatened by the actions or activities of any State that are prohibited for a State Party under the Convention (i.e., in addition to the uses mentioned above, the development, production, acquisition, stockpiling or retention of chemical weapons; the transfer, directly or indirectly, of chemical weapons to anyone; military preparations to use chemical weapons; and assistance, encouragement or inducement of anyone to engage in any activity prohibited to a State Party under the Convention).
Note that a State Party may receive assistance in response to actual use by anyone, including entities that are not States, and may receive assistance when threatened by the use or other relevant actions of any State, including those that are not a Party to the Convention. The purpose of these provisions is to provide security measures for States Parties in regions where not all states are parties to the Convention.
Paragraphs 9, 10, and 11 of Article X set out the procedures to be followed once a request for assistance has been made by a State Party.
Paragraph 9 of Article X sets forth a detailed set of procedures for investigation and reporting by the Director–General in response to a request for assistance. Basically, the request is submitted to the Director–General, then transmitted directly to the Executive Council and all States Parties. Within 12 hours, the Director–General forwards the request to all States Parties who have volunteered protective and emergency assistance under paragraph 7. Within 24 hours, the Director–General must initiate an investigation, which must be completed within 72 hours and a report submitted to the Executive Council. However, if additional time is needed, an interim report can be submitted and additional periods of 72 hours may be used for investigation, with interim reports submitted at the end of each period.
Specifically, paragraph 9 states that the request, substantiated by relevant information, shall be submitted to the Director–General, who shall transmit it immediately to the Executive Council and to all States Parties. The Director–General must then immediately forward the request to States Parties which have volunteered, in accordance with paragraphs 7 (b) and (c) (i.e. agreements or declarations) to dispatch emergency assistance in case of use of chemical weapons or use of riot control agents as a method of warfare, or humanitarian assistance in case of serious threat of use of chemical weapons or serious threat of use of riot control agents as a method of warfare to the State Party concerned not later than 12 hours after receipt of the request. This paragraph further states that the Director–General shall initiate, not later than 24 hours after receipt of the request, an investigation in order to provide foundation for further action, complete the investigation within 72 hours and forward a report to the Executive Council. This paragraph also states that if additional time, which shall not exceed 72 hours, is required for completion of the investigation, an interim report shall be submitted within the same time–frame, and that the period of time for investigations may, however, be further extended by similar periods, although reports at the end of each additional period must be submitted to the Executive Council. Finally, this paragraph states that the investigation shall, as appropriate and in conformity with the request and the information accompanying the request, establish relevant facts related to the request as well as the type and scope of supplementary assistance and protection needed.
Paragraph 10 of Article X sets forth the procedures for provision of supplemental assistance by the Director–General, as directed by the Executive Council in response to the Director–General's investigation. Specifically, this paragraph states that the Executive Council shall meet not later than 24 hours after receiving an investigation report to consider the situation and shall take a decision by simple majority within the following 24 hours on whether to instruct the Technical Secretariat to provide supplementary assistance, i.e. assistance in addition to that provided by States Parties pursuant to paragraphs 7 (b) and (c) of this Article. This paragraph further states that the Technical Secretariat shall immediately transmit to all States Parties and relevant international organizations the investigation report and the decision taken by the Executive Council. This paragraph also states that, when so decided by the Executive Council, the Director–General shall provide assistance immediately, i.e. assistance financed by the voluntary fund pursuant to paragraph 7(a) of this Article, and that for this purpose, the Director–General may cooperate with the requesting State Party, other States Parties and relevant international organizations. Finally, this paragraph states that the States Parties shall make the fullest possible efforts to provide assistance.
Paragraph 11 of Article X contemplates those situations in which there may not be sufficient time to take the steps outlined in paragraphs 9 and 10. Specifically, this paragraph states that if the information available from the ongoing investigation or other reliable sources would give sufficient proof that there are victims of use of chemical weapons and immediate action is indispensable, the Director–General shall notify all States Parties and shall take emergency measures of assistance, using the resources the Conference has placed at his or her disposal for such contingencies. This paragraph further states that the Director–General shall keep the Executive Council informed of actions undertaken pursuant to this paragraph.