CHEMICAL WEAPONS CONVENTIONSENATE FOREIGN RELATIONS COMMITTEE APRIL 1997
CHEMICAL WEAPONS CONVENTION
S. Hrg. 105-183
CHEMICAL WEAPONS CONVENTION
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HEARINGS
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
__________
Wednesday, April 9, 1997
Feith, Douglas J., Feith and Zell, P.C., former Deputy Assistant
Secretary of Defense for Negotiation Policy.................... 107
Prepared statement........................................... 110
Ikle, Dr. Fred C., former Director, Arms Control and Disarmament
Agency......................................................... 105
Kirkpatrick, Dr. Jeane J., former U.S. Permanent Representative
to the United Nations, Senior Fellow, American Enterprise
Institute...................................................... 91
Prepared statement........................................... 96
Perle, Richard N., former Assistant Secretary of Defense for
International Security Policy.................................. 99
Rowny, Lieutenant General Edward L., U.S. Army (retired),
International Negotiation Consultant........................... 131
Prepared statement........................................... 133
Scowcroft, General Brent, President, Forum for International
Policy, and former National Security Policy Advisor............ 134
Zumwalt, Admiral E.R., Jr., United States Navy (retired), Member,
President's Foreign Intelligence Avisory Board................. 124
WEDNESDAY, APRIL 9, 1997
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 2:11 p.m., in
room SD-419, Dirksen Senate Office Building, Hon. Jesse Helms
(chairman of the committee) presiding.
Present: Senators Helms, Hagel, Smith, Frist, Biden, Kerry,
Robb, Feinstein, and Wellstone.
The Chairman. The committee will come to order.
We have been delaying a little bit, because one of the four
witnesses on the first panel has just arrived. We are delighted
to see you.
Well, I say to my distinguished colleagues, Mr. Robb and
Mr. Biden, that today marks the third in this particular round
of hearings on the Chemical Weapons Convention. This morning's
first panel of witnesses will include the Hon. Jeane
Kirkpatrick, known to all of us, former Ambassador to the
United Nations; the Hon. Richard Perle, former Assistant
Secretary of Defense; the Hon. Fred Ikle, former Director of
the Arms Control and Disarmament Agency; and Doug Feith, former
Deputy Assistant Secretary of Defense. Former goes before each
one of those titles.
There will be a second panel of witnesses in support of the
Convention.
We appreciate your appearing here this afternoon as the
committee undertakes further consideration of the CWC. All four
of you are distinguished leaders, whose impressive expertise
makes your insight crucial to the Senate's consideration of
this matter, which involves, as we all know, the future
security of the United States. The Senate will benefit greatly
from your assessment and guidance regarding the wisdom of
ratifying the treaty in its present form--and I would
underscore those words.
Now, I will say we have had many, many compliments by
telephone, fax and otherwise regarding the testimony of three
former Secretaries of Defense who were here in person, and one
of whom read a letter of opposition to the treaty written by
the previous Secretary of Defense. We look forward to your
testimony. You are joined in your opposition by a fourth
Secretary of Defense, Richard Cheney, and more than 50
generals, admirals and top officials from previous
administrations.
I think this ought to be sort of a wake-up call to the
administration, because the American people, despite efforts to
the contrary by some in the news media, the American people are
increasingly aware of the defects in this treaty. Now, I am not
going to proceed further with my statement, in the interest of
hearing our witnesses, but I will defer to the distinguished
Ranking Member.
If Senator Robb has any comments, since I did not know you
were here yesterday, we would be glad to hear from you as well.
Senator Biden. Mr. Chairman, thank you very much. Let me
begin by publicly thanking you for allowing the second panel.
We have a number--seven very distinguished Americans here. I
think they probably find--they are probably in the position,
not for the first time, but not as frequently as we are, of
finding themselves on opposite sides of things they are usually
in total agreement with their friends on and vice-versa. I mean
we are accustomed to that. That is part of our stock in trade.
I appreciate you allowing former National Security Advisor
Brent Scowcroft--a former general, as well--General Rowny, and
Admiral Zumwalt to be here. I realize the rule is basically 3-
to-1, but you were kind enough to us yesterday to allow that. I
appreciate it.
I want to take just a few minutes to address a few concerns
that we raised in yesterday's hearing and that have gone
unanswered. The reason I bother to do it I am not sure, because
so much has been going on in terms of the non-public side of
this process and in terms of negotiations; I am not suggesting
that any of the things we have tentatively agreed on among
ourselves on this side of the bench and with the administration
and Senator Lott and others, that they will satisfy any of the
witnesses, but there is no reason they would know they existed.
I will just take just a few minutes--probably about 9 I hope.
My impression is that one of the reasons you suggested that
we have an additional set of hearings was that we have a number
of new Members--a very bright, informed group of people, who
have taken their jobs on this committee very seriously--and
that they did not have an opportunity to participate in
previous hearings. My impression is that these new Members
truly want to learn about the treaty and base their decision on
the facts. I hope that these hearings are giving them an
opportunity to be acquainted with them.
This afternoon, we are going to hear testimony about the
treaty and what it does and does not do. But I used to practice
law with a fellow who was one of the best trial lawyers in the
State of Delaware, a guy named Sid Bialek. He always used to
say when he would teach young lawyers like me how to address a
jury, he would say, when you start off with a jury, tell them:
Now, jury, keep your eye on the ball. This is not about whether
or not my client is a nice guy. It is whether he killed Cock
Robin. Keep your eye on the ball.
Well, I think one of the things we have to keep our eye on,
I say to my colleagues--obviously, not to the witnesses--is
that this is a treaty that outlaws poison gas. It outlaws
chemical weapons. At least that is its intent. I guess that is
the essence of the debate here--whether or not it adequately
does that.
Entry into force of the Chemical Weapons Convention will
mark a major milestone in our effort to enlist greater
international support for an important American objective of
containing and penalizing rogue states that seek to acquire or
transfer weapons of mass destruction. I want to make it clear,
based on yesterday's panel, the first one--and it was a
distinguished panel--several said, including one former
Secretary of Defense, that they were accused of being for
chemical weapons and for the use of these.
I just want you to know, I know no one who supports the
treaty in the Senate who suggests anyone who opposes the treaty
is someone who is for the active use of chemical weapons. So I
want to make that clear at the outset. I never heard anybody
say that, and I am sure the former Secretary would not have
said it unless someone had mentioned it to him. But no one on
this committee that I am aware of who is for the treaty thinks
that.
Among the claims, though, that were made yesterday about
the CWC is that it would force us to share our most advanced
defensive technology with all states, including countries of
concern that have ratified the agreement. Iran comes to mind
immediately.
Another assertion is that it requires us to abandon all
controls we have on the proliferation of sensitive technology
through mechanisms like the Australia Group. As I reviewed the
treaty, I became a little concerned about this initially. With
regard to sharing the defensive technologies, some general
provisions appeared to back up their claim. But, on close
inspection, I believe it reveals that the critics are wrong.
First, the provisions in Article X, Paragraph 3, are
deliberately vague. The obligation on a party is to facilitate
the fullest possible exchange of equipment and information.
When read in light of the overriding imperative of Article I,
to not assist any party from engaging in activities prohibited
by CWC, it seems clear to me and the lawyers that I have
consulted that we will not be obliged to provide assistance to
rogue states under this provision.
Now, just to make sure that I was reading this correctly, I
asked for some clarification. I spoke to somebody who obviously
would want to clarify it the way I read it, so take it for what
it is worth. But the National Security Advisor, Sandy Berger,
today sent me a letter. In that letter, he states that any
exchange of equipment and technology under Paragraph 3 of
Article X, ``is limited to that which we determine would be
appropriate and permitted under the convention.'' In addition,
Paragraph 7 of Article X requires no assistance, ``other than
medical supplies, if we so choose''--if we so choose.
I ask that this letter from Mr. Berger be inserted in the
record, Mr. Chairman, so that my colleagues can at least
understand the position that I hold and that I believe that
pertains.
The Chairman. Without objection.
Senator Biden. Thank you very much.
[The information referred to follows:]
The White House,
Washington, DC, April 9, 1997.
Hon. Joseph R. Biden, Jr.,
U.S. Senate, Washington, D.C. 20510.
Dear Senator Biden. In recent days, concerns have been raised about
the impact of the Chemical Weapons Convention on the ability of rogue
states to acquire advanced U.S. Chemical defense or chemical
manufacturing technology. I would like to take this opportunity to set
the record straight on these matters.
Specifically, concern has been expressed about Paragraph 3 of
Article X of the CWC, which states that ``Each Party undertakes to
facilitate and shall have the right to participate in the fullest
possible exchange of equipment, material and scientific and
technological information concerning means of protection against chemi-
cal weapons.'' The inclusion of the words ``facilitate'' and
``possible'' underscores that no specific exchange is required and that
any exchange which does occur is limited to that which we determine
would be appropriate and permitted under the Convention. Moreover,
nothing in Paragraph 7 of Article X, which concerns possible responses
to requests for assistance, requires us to provide anything other than
medical supplies, if we so choose.
Concern has also been expressed about whether Article XI of the
CWC, which relates to cooperation in the field of chemical activities
for purposes not prohibited under the treaty, might force our chemical
industry to share dual-use technologies and manufacturing secrets with
other nations. Let me assure you that Article XI does not require
private businesses to release such proprietary or otherwise
confidential business information, nor does it require the U.S.
Government to force private businesses to undertake such activities.
Let me further assure you that the export controls that we and other
Australia Group members have undertaken, as well as our own national
export controls, are fully consistent with the CWC and serve to further
its implementation.
I hope this information facilitates Senate consideration of the
CWC. I look forward to continuing to work with you and other CWC
supporters to ensure a successful vote on this vital treaty in the days
ahead.
Sincerely,
Samuel R. Berger,
Assistant to the President for National Security Affairs.
Senator Biden. At this point, Mr. Chairman, you and I have
come close to agreement on a condition that would require the
executive branch to ensure that countries of concern receive no
assistance from us beyond medical antidotes and treatment, and
that we would be fully informed and it would be fully in
keeping with Article X of the CWC.
As for the argument that we would be forced to abandon our
current mechanisms to control the proliferation of sensitive
technology, the CWC explicitly allows us to keep these
protections in place. Article 7 supports chemical trade and
technology exchange ``for purposes not prohibited under this
convention.'' It also requires that trade restrictions not be,
quote, incompatible with the obligations undertaken in this
convention.
But the CWC is completely consistent with the continued
enforcement of the Australia Group controls, which member
states use to keep chemical and biological weapons materiel out
of the hands of rogue states. The executive branch has said
this time and again, and so have our friends and allies in the
Australia Group. That helps explain why 26 of the 29 members of
the Australia Group have ratified this treaty--everyone except
Iceland, Luxembourg and the United States.
Last October, at the most recent meeting of the Australia
Group, the 29 countries reaffirmed their intention to maintain
common export controls, while joining the treaty convention. In
a statement issued at the meeting, the Australia Group said,
``the maintenance of effective export controls remain an
essential, practical means of fulfilling obligations under the
CWC.''
I would also ask unanimous consent that that statement be
inserted in the record, Mr. Chairman.
The Chairman. Without objection.
[The information referred to follows:]
Australian Embassy, Paris,
October 17, 1996.
Australia Group Meeting
Australia Group participants held informal consultations in Paris
between Oct. 14-17, to discuss the continuing problem of chemical and
biological weapons (CBW) proliferation. Participants at these talks
were Argentina, Australia, Austria, Belgium, Canada, the Czech
Republic, Denmark, the European Commission, Finland, France, Germany,
Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg,
Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovak
Republic, Spain, Sweden, Switzerland, United Kingdom and the United
States, with the Republic of Korea taking part for the first time.
Participants maintain a strong belief that full adherence to the
Chemical Weapons Convention (CWC) and to the Biological and Toxin
Weapons Convention (BTWC) will be the best way to eliminate these types
of particularly inhumane weapons from the world's arsenals. In this
context the maintenance of effective export controls will remain an
essential practical means of fulfilling obligations under the CWC and
the BTWC.
All participants at the meeting welcomed the expected entry into
force of the CWC, noting that this long-awaited step will be an
important, historic moment in international efforts to prohibit
chemical weapons. Participants agreed to issue a separate statement on
this matter, which is attached.
Participants also welcomed the progress of efforts to strengthen
the BTWC in the negotiations taking place in the Ad Hoc Group of BTWC
States Parties in Geneva. All Australia Group participating countries
are also States Parties to this treaty, and strongly support efforts to
develop internationally agreed procedures for strengthening
international confidence in the treaty regime by verifying compliance
with BTWC obligations.
Experts from participating countries discussed national export
licensing systems aimed at preventing inadvertent assistance to the
production of CBW. They confirmed that participants administered export
controls in a streamlined and effective manner which allows trade and
the exchange of technology for peaceful purposes to flourish. They
agreed to continue working to focus these national measures efficiently
and solely on preventing any contribution to chemical and biological
weapons programs. Participants noted that the value of these measures
in inhibiting CBW proliferation benefited not only the countries
participating in the Australia Group, but the whole international
community.
Participants also agreed to continue a wide range of contacts,
including a further program of briefings for countries not
participating in the Paris consultations to further awareness and
understanding of national policies in this area. Participants endorsed
in this context the importance of regional seminars as valuable means
of widening contacts with other countries on these issues. In
particular, Romania's plans to host a seminar on CBW export controls
for Central and Eastern European countries and the Commonwealth of
Independent States in Bucharest on Oct. 21-22 and Japan's plans to host
a fourth Asian Export Control Seminar in Tokyo in early 1997 were
warmly welcomed by participants. Argentina will also host a regional
seminar on non-proliferation matters, in Buenos Aires, in the first
week of December 1996. France will organize a seminar for French-
speaking countries on the implementation of the CWC. This will take
place shortly before entry into force of the Convention.
The meeting also discussed relevant aspects of terrorist interest
in CBW and agreed that this serious issue requires continuing
attention.
Participants agreed to hold further consultations in October 1997.
__________
Australia Group Countries Welcome Prospective Entry Into Force of the
Chemical Weapons Convention
The countries participating in the Australia Group warmly welcomed
the expected entry into force of the Chemical Weapons Convention (CWC)
during a meeting of the Group in Paris in October 1996. They noted,
that the long awaited commencement of the CWC regime, including the
establishment of the Organization for the Prohibition of Chemical
Weapons, will be an historic watershed in global efforts to abolish
chemical weapons for all time. They also noted that all states adhering
to the CWC are obliged to ensure their national activities support the
goal of a world free of chemical weapons.
All of the participating countries reiterated their previous
statements underlining their intention to be among the original States
Parties to the CWC. They noted that 24 of the 30 countries
participating in the Australia Group have already ratified the
Convention. Representatives also recalled their previous expressions of
support for the CWC, and reaffirmed these commitments. They restated
their view that the effective operation and implementation of the CWC
offers the best means available to the international community to rid
the world of these weapons for all time. They called on all signatories
to ratify the CWC as soon as possible, and on the small number of
countries which have not signed the treaty to join the regime and
thereby contribute to international efforts to ban these weapons.
Representatives at the Australia Group meeting recalled that all of
the participating countries are taking steps at the national level to
ensure that relevant national regulations promote the object and
purpose of the CWC and are fully consistent with the Convention's
provisions when the CWC enters into force for each of these countries.
They noted that the practical experience each country had obtained in
operating export licensing systems intended to prevent assistance to
chemical weapons programs have been especially valuable in each
country's preparations for implementation of key obligations under the
CWC. They noted in this context, that these national systems are aimed
solely at avoiding assistance for activities which are prohibited under
the Convention, while ensuring they do not restrict or impede trade and
other exchanges facilitated by the CWC.
Senator Biden. Mr. Chairman, I am convinced the CWC does
not require us to share our most advanced defense technology or
to abandon existing controls on chemical weapons. Just to make
certain of that, I asked Sandy Berger to address this point. I
will, in the interest of time, since I asked you to add
additional witnesses, ask that the remainder of my statement be
placed in the record and conclude by saying this treaty enters
in force on April 29th, and time is running short. Mr.
Chairman, I hope that we, when we conclude these hearings--as
long as I do not prolong them--that at some point we might be
able to reach an agreement on how to proceed on the floor. But
that is for another time, another moment.
I thank the witnesses and I thank the chair.
[The prepared statement and the information referred to by
Senator Biden follows:]
Prepared Statement of Senator Biden
Thank you, Mr. Chairman. I wanted to take a few minutes this
morning to address a few concerns that were raised in yesterday's
hearing and may have gone unanswered.
When you called these hearings, you said that it was important that
the new members of the committee have an opportunity to learn more
about it. And I am pleased to see that our new colleagues have taken
your recommendation to heart.
My impression is that they truly want to learn about this treaty
and base their decision on the facts--and maybe the request by the
Secretary of State won't hurt, either.
This afternoon we will hear more testimony about this treaty and
what it does and does not do, but the core issue is very simple: this
treaty outlaws poison gas weapons.
The entry into force of the Chemical Weapons Convention will mark a
major milestone in our efforts to enlist greater international support
for the important American objective of containing and penalizing rogue
states that seek to acquire or transfer weapons of mass destruction.
Yesterday, we heard three very distinguished former Secretaries of
Defense testify on this treaty.
Among the claims they made about the CWC are that it would force us
to share our most advanced defensive technology with all states,
including countries of concern, that have ratified this agreement.
Another assertion they made is that it requires us to abandon all
controls we have on the proliferation of sensitive technology through
mechanisms like the Australia Group.
As I reviewed the treaty, I became a little concerned about this.
With regard to sharing defensive technology, some general provisions
appeared to back up their claim.
But close inspection reveals that the critics are wrong.
First, the provisions of Article Ten, Paragraph Three are
deliberately vague: the obligation on a party is to ``facilitate'' the
``fullest possible exchange'' of equipment and information.
When read in light of the overriding imperative in Article One to
not assist any party from engaging in activities prohibited by the CWC,
it is clear that we will not be obligated to provide assistance to
rogue states under this provision.
Now just to make sure that I was reading this correctly, I asked
the White House to clarify this point for me. Sandy Berger, the
President's National Security Adviser, today sent me a letter that
confirms this interpretation.
In Mr. Berger's letter, he states that any exchange of equipment
and technology under Paragraph Three of Article Ten ``is limited to
that which we determine would be appropriate and permitted under the
convention.'' In addition, Paragraph Seven of Article Ten requires no
assistance ``other than medical supplies, if we so choose.''
I ask that this letter from Mr. Berger be inserted into the record,
so that my colleagues can reassure themselves that this treaty does not
oblige us to share advanced chemical defense technology with rogue
states.
On this point, the Chairman and I are very close to agreement on a
condition that would require the executive branch to ensure that
countries of concern receive no assistance from us beyond medical
antidotes and treatment. And that would be fully in keeping with
Article Ten of the CWC.
As for the argument that we would be forced to abandon our current
mechanisms to control the proliferation of sensitive technology, the
CWC explicitly allows us to keep these protections in place.
Article Eleven supports chemical trade and technology exchange
``for purposes not prohibited under this convention.'' It also requires
that trade restrictions not be ``incompatible with the obligations
undertaken under this convention.''
But the CWC is completely consistent with continued enforcement of
the Australia Group controls, which member states use to keep chemical
and biological weapons material out of the hands of rogue states. The
executive branch has said this time and again, and so have our friends
and allies in the Australia Group.
That helps explain why twenty-six of the twenty-nine members of the
Australia Group have ratified this treaty--everyone except Iceland,
Luxembourg and the United States.
Last October, at the most recent meeting of the Australia Group,
the twenty-nine countries reaffirmed their intention to maintain common
export controls while joining the Chemical Weapons Convention.
In a statement issued at that meeting, the Australia Group said,
and I quote: ``the maintenance of effective export controls will remain
an essential practical means of fulfilling obligations under the CWC.''
I ask consent that this statement be inserted into the record.
I am convinced that the CWC does not require us to share our most
advanced defensive technology or to abandon existing controls on
chemical weapons. And just to make certain of that, I asked Sandy
Berger to address this point in the letter I referred to.
So I ask my colleagues to review this section of the treaty and to
examine Mr. Berger's letter and the Australia Group's statement to
reassure themselves that the CWC does not obligate us to share advanced
defensive technology or chemicals or chemical technologies with
countries like China, Cuba or Iran.
Turning to another issue, my colleague, Senator Smith, expressed an
interest yesterday in the constitutional issues that many critics of
the convention have raised. I want to take this opportunity to set the
record straight.
The convention is constitutional. There is nothing in the
convention that requires searches in violation of the Fourth Amendment,
takings of property without just compensation, or compelled self-
incriminatory testimony
Just this morning we received a letter from twenty-two law
professors and distinguished attorneys expressing their view that the
convention is constitutional, including former Attorney General Elliot
Richardson, former State Department legal adviser and Harvard law
professor Abram Chayes, Columbia University professor Louis Henkin, and
Harvard law professor Laurence Tribe. I ask that this letter be placed
into the record.
Those who claim that the CWC would permit international inspectors
to engage in warrantless searches in any business or private home are
dead wrong and are spreading falsehoods.
There will be no warrantless searches under the CWC, period. Here
are the facts:
There are two types of inspections--routine inspections and
challenge inspections.
Routine inspections apply only to declared facilities--that is,
facilities that produce or use scheduled chemicals. In the unlikely
event that a declared facility does not consent to be searched, an
administrative warrant will be sought from a federal judge or
magistrate judge.
This is the same procedure that would be used for inspections
conducted under Federal health, safety, and environmental laws.
Challenge inspections are conducted at the request of another
government based on evidence of possible non-compliance. These
inspections can take place anywhere in the United States.
The administration has agreed that, absent consent, the U.S.
Government will have to obtain a criminal search warrant, based on
probable cause of criminal wrongdoing, to conduct a challenge
inspection everywhere but declared facilities.
If a search warrant cannot be obtained for either type of search,
the inspection will not take place.
And, since the convention allows the United States Government to
``take into account any constitutional obligations it may have with
regard to searches and seizures'' when granting access to U.S.
facilities, we will not be in breach of our treaty obligations if a
challenge inspection is denied due to Fourth Amendment considerations.
I ask consent that a letter from the Attorney General to Senator
Lott addressing these very issues be made a part of the record.
I hope that the Attorney General's assurances, along with the
statements of other administration officials, have eased the concerns
of those who, like me, strongly believe in the importance of the Fourth
Amendment.
Again, I would like to thank my colleagues and our witnesses for
their time and attention this morning. I hope that these hearings will
help to clear up the misconceptions about the Chemical Weapons
Convention so that we can move expeditiously to bring this treaty
before the full Senate for a vote on ratification.
This treaty enters into force on April 29, and time is running
short.
Thank you, Mr. Chairman.
______
Letter From Attorney General Janet Reno
to Senate Majority Leader Trent Lott
Office of the Attorney General,
Washington DC, March 3, 1997.
Hon. Trent Lott,
Majority Leader,
U.S. Senate, Washington, DC 20510.
Dear Mr. Leader: As the public debate over ratification of the
Chemical Weapons Convention (CWC) grows in intensity, various concerns
regarding the constitutionality of the CWC have come to my attention.
Some have suggested that enforcement of the CWC, in order to be
effective, will necessarily impinge on Fourth Amendment rights.
Specifically, concerns have been raised that the Convention will
authorize warrantless, non-consensual searches or that searches will be
conducted pursuant to warrants that lack probable cause. The CWC and
the draft implementing legislation contemplate no such circumstances.
All inspections will be conducted consistent with the requirements of
the Fourth Amendment.
Let there be no doubt, the Department of Justice stands fully
behind both the goals and the specific terms of the CWC. The
Convention, along with the proposed legislation, strikes the proper
balance between effective efforts to eliminate the scourge of chemical
weapons and to preserve our constitutional rights. Over the course of
the past four years, the Justice Department has closely scrutinized CWC
and has assisted in the drafting of its implementing legislation. Our
focus has been consistently on the necessity of adherence to
constitutional requirements. In testimony given on September 9, 1996,
before the Senate Judiciary Committee's Subcommittee on the
Constitution, Richard Shiffrin, Deputy Assistant Attorney General,
Office of Legal Counsel, explained how inspections would be conducted
consistent with the Fourth Amendment. We expect the vast majority of
routine inspections will be conducted with consent. On the few
occasions where consent has been withheld, administrative search
warrants will be sought for routine inspections. In the case of
challenge inspections, again, we expect consent to be the rule.
Declared facilities selected for a challenge inspection would be
subject to inspections in the same manner as provided under the CWC and
implementing legislation for routine inspections. However, a criminal
search warrant will be applied for in every case where consent is
denied to a challenge inspection of undeclared facilities.
The convention, in Annex 2, pt. X, para. 41, specifically allows
the U.S. Government, in granting access to facilities identified for
challenge inspections, to ``take into account any constitutional
obligations it may have with regard to proprietary rights or searches
and seizures.'' Hence, in the rare event that the Fourth Amendment
would pose a bar to a search of premises identified for a challenge
inspection, the United States would remain in full compliance with its
obligations under the CWC.
I realize that many of the detractors of the Convention are
principled in their opposition. Their constitutional concerns are,
however, unfounded. The dictates of the Fourth Amendment have been
scrupulously honored in the drafting and will be rigidly followed in
the implementation. Finally, no legitimate Fifth Amendment issues are
raised with respect to the record keeping or disclosure requirements.
The provisions of the Convention and the draft implementing legislation
neither require nor contemplate compelling anyone to incriminate
himself. And, both the CWC and draft legislation in no way authorize
the taking of private property without compensation.
It is my hope that the Senate will consider the Convention in an
expeditious manner and will consent to its ratification.
Sincerely,
Janet Reno.
__________
April 9, 1997.
Hon. Joseph R. Biden, Jr,
Minority Leader, Committee on Foreign Relations,
Washington, DC.
Dear Senator Biden: The undersigned lawyers, former government
officials, and professors of constitutional and international law write
to urge the Senate to give its prompt advice and consent to the
ratification of the Chemical Weapons Convention (CWC). The Senate's
decision will have profound ramifications for United States leadership
in controlling the spread of weapons of mass destruction. Moreover, the
Convention will enter into force on April 29 whether or not the United
States ratifies, but if it does so without U.S. ratification, American
participation in the staffing of the Organization for the Prohibition
of Chemical Weapons (OPCW) and in the inspector corps will be severely
reduced. Therefore, prompt action is essential.
The CWC is a global commitment to eliminate an entire category of
weapons of mass destruction and to verify their continued absence. The
treaty's backbone is the most thoroughgoing international law
enforcement system yet devised, providing for verification of the
destruction of chemical weapons stockpiles and for monitoring of
chemical plants to prevent future proliferation. The verification
system includes declaration of precursor chemicals that could be made
into chemical weapons, routine inspections at facilities that are
declared to possess such precursors, and ``challenge'' inspections to
confirm compliance at any facility or location. President George Bush,
under whose administration the treaty was completed and signed,
characterized the Convention as ``an entirely new concept for
overcoming the great obstacle that has impeded progress in the past
toward a full chemical weapons ban.''
We would have thought that U.S. ratification of this Convention was
a foregone conclusion. Unfortunately, at the last minute, objections
have been raised concerning the constitutionality of the Convention's
elaborate verification system under the Fourth Amendment. Treaty
opponents have circulated the claim that, under the CWC, foreign
inspectors would be empowered to intrude into the privacy of American
citizens and businesses in violation of their Fourth Amendment rights.
Much of this commentary based on a letter from Judge Robert Bork to
Senator Orrin Hatch stating that ``there are grounds to be concerned''
about the compatibility of some of the provisions of the Convention
with the Constitution. Judge Bork's letter concedes that he is ``not
intimately familiar with the provisions of the Convention,'' an
acknowledgment that is borne out by the inaccuracy of his description
of the Convention in the body of his letter.
The short answer to these contentions is that the Convention itself
provides that each State Party shall implement its provisions ``in
accordance with its constitutional processes,'' (Art. VII, par. 1), and
the challenge inspection provisions further require that inspections
must be consistent with ``any constitutional obligations * * * with
regard to * * * searches and seizures.'' (Verification Annex, pt. X,
par. 41). Thus, Congress, which must pass domestic legislation to
implement the inspection provisions of the Convention, can do so in a
manner that fully protects the rights of American citizens under the
Fourth Amendment without in any way violating the international
obligations the United States will undertake under the treaty. A vast
quantity of scholarly and governmental discussion on the subject has
affirmed virtually unanimously that the CWC fully respects U.S.
constitutional protections of privacy. Indeed, every scholar willing to
put his or her opinions on the CWC to the test of detailed public
review agrees that the treaty manifests extraordinary care in balancing
the demands of privacy against the requirements for effective
verification of the Convention.
If the Senate fails to give its advice and consent to the CWC, an
extraordinary achievement of over fifteen years of bipartisan effort
will be frustrated; and a major opportunity to prevent the
proliferation of chemical weapons will have been lost. If the Senate
wishes to reject the treaty, that is of course its prerogative. But it
should not do so on the spurious ground that it conflicts with the
Constitution.
Sincerely,
Professor M. Cherif Bassiouni, DePaul University College of Law
Professor Richard B. Bilder, Burrus-Bascom Professor, University of
Wisconsin Law School
Professor Thomas Buergenthal, Lobingier Professor of Comparative Law &
Jurisprudence, the George Washington University Law School
Professor George Bunn, Dean Emeritus, Professor Emeritus, University
of Wisconsin Law School
Professor David D. Caron, University of California at Berkeley School
of Law
Abram Chayes, Professor of Law, Emeritus Felix Frankfurter Harvard Law
School
Professor Lori Fisler Damrosch, Columbia University School of Law
Professor John Hart Ely, Richard A. Hausler Professor University of
Miami School of Law
Phil Fleming, Crowell & Moring
Professor Thomas M. Franck, Murray and Ida Becker Professor, Director,
Center for International Studies, New York University School of
Law
Professor Michael J. Glennon, University of California at Davis School
of Law
Professor Barry Kellman, DePaul University College of Law
Professor John F. Murphy, Villanova University School of Law
John B. Rhinelander, Shaw, Pittman
Professor Anne-Marie Slaughter, J. Sinclair Armstrong Professor of
International, Comparative and Foreign Law, Harvard Law School
Professor Laurence H. Tribe, Ralph S. Tyler, Jr. Professor of
Constitutional Law, Harvard Law School
Professor Louis Henkin, University Professor Emeritus, Special Service
Professor, Columbia University School of Law
Professor David A. Koplow, Director, Center for Applied Legal Studies,
Georgetown University Law Center
Professor Peter Raven-Hansen, Associate Dean, Academic Affairs, Glen
Earl Weston Research Professor, George Washington University
Law School
Elliot L. Richardson, Esq., Milbank, Tweed, Hadley & McCloy
Professor Edwin (Rip) Smith, Leon Benwell Professor of Law and
International Relations, University of Southern California Law
School
Professor Burns H. Weston, Bessie Dutton Murray Distinguished
Professor, Associate Dean, International and Comparative Legal
Studies, University of Iowa College of Law
The Chairman. Let us have brief statements by our other
Senators here, if you wish. Senator Robb.
Senator Robb. Thank you, Mr. Chairman. You were kind enough
to make reference to the fact that I came in just at the
conclusion of yesterday afternoon's hearing, and you had not
recognized me as you were banging the gavel. I thank you for
that acknowledgement.
I had raced up from an armed services hearing, trying to
sort out the dangers posed by Russian submarines and other
submarines, in order to get here. I want to assure you,
however, that both the portions of yesterday's meeting, in the
morning that I had to leave and the portion that I missed
yesterday afternoon, were replayed on C-SPAN, beginning about
midnight and ending about 2:45 a.m.
And, Mr. Chairman, to demonstrate my commitment to the
cause, I want you to know that I stayed up and watched all of
the hearing that I missed. Regrettably, I am going to have to
go to an intelligence hearing today, so I will miss more. But I
am sure that it will be rebroadcast.
On a more serious vein, I did attend all of the hearings
last year. I thought they were some of the best and most
informative. There have been excellent witnesses on both sides
of the question. I committed myself to the affirmative side. I
thought that was the more persuasive argument last year. I have
not changed my position. But I think that the distinguished
witnesses that we have had for these hearings have done more to
give the American people, and certainly the members who are
going to vote on these issues, a better understanding of what
the treaty does and does not do. For that, I commend you, and I
thank you.
The Chairman. Thank you very much. Senator Frist.
Senator Frist. Thank you, Mr. Chairman. I want to
congratulate you for bringing forth such outstanding witnesses
in this series of hearings. I want to thank each of you for
being with us today.
I continue to struggle with the issues that we are talking
about--the verification, the extent of coverage, global
coverage, enforceability. Part of it is based on my experience
of being in chemistry labs myself, whether it is organic
chemistry or inorganic chemistry, which I had to do to become a
physician, and remembering very vividly people saying, ``right
in this room, in this little laboratory, we could do such
destruction if we wanted to.'' Then I come back today, in terms
of that verification and enforceability, and I look forward to
hearing from each of our witnesses as we systematically
continue our addressing these very important issues.
The Chairman. Thank you.
Briefly, please, ma'am, and sir. After you two, if any
other Senators come in, I am going to not notice their arrival
either. Senator Feinstein.
Senator Feinstein. Just very quickly, Mr. Chairman, if I
might, and to our distinguished witnesses.
I think the thing that would be most helpful to me, and
perhaps you can cover this in your testimony, would be if you
could substantiate your comments on your belief of non-
verification, why you believe it is better to stay out of this
kind of a treaty and why you think that, with our staying out
of it, we would have a better opportunity (a) to make a moral
commitment and (b) a real commitment and (c) how verification
would be improved if we are not in the treaty.
I thank you, Mr. Chairman.
The Chairman. I am sure they will answer that in due time.
Briefly, please.
Senator Wellstone. Mr. Chairman, I feel like I am under
pressure to be brief.
The Chairman. You are.
Senator Wellstone. So I will be brief. I know we have got a
long hearing today, and I am only going to be able to stay for
the first part. I apologize to the others. So I thank the Chair
for the hearing and I thank each of you for being here.
The Chairman. Do you have anything to say, Chuck?
Senator Hagel. No. Thank you.
The Chairman. Ambassador Kirkpatrick, you will be the lead-
off, please.
STATEMENT OF DR. JEANE J. KIRKPATRICK, FORMER U.S. PERMANENT
REPRESENTATIVE TO THE UNITED NATIONS, SENIOR FELLOW, AMERICAN
ENTERPRISE INSTITUTE
Ambassador Kirkpatrick. Thank you, Mr. Chairman.
The Chairman. Thank you for coming.
Ambassador Kirkpatrick. Thank you very much, Mr. Chairman,
for inviting me to testify before this distinguished committee
on this important subject. It is an important subject, and the
Senate's decision will be more important even.
I have followed this and some comparable issues with great
interest since I served as U.S. Permanent Representative to the
United Nations under Ronald Reagan. At that time, there were
several such covenants that either had been passed or were
being considered. It was then that I became aware of some of
the facts which have ever since caused me to have a lot of
questions and doubts about such covenants.
It was then that I first became aware of the fact that the
Nuclear Nonproliferation Treaty was being used to achieve very
different purposes than those for which it was undoubtedly
intended. It was then I became aware of the fact that it was
being used to acquire and spread the technology and products
needed to produce nuclear weapons rather than to prevent their
spread.
It was even then understood among the informed public in
the United Nations context that a country such as Iraq, by
signing the Nuclear Nonproliferation Treaty, the NPT, acquired
a right to share technology which could then be used to produce
nuclear products. Now, it is generally understood by such
countries that the shortest route to a nuclear capacity is
through the NPT, the Nuclear Nonproliferation Treaty.
Iran is traveling that road today. We and other signatories
are helping to finance their development of a nuclear capacity,
and we know it.
Secretary of State Christopher made an interesting comment
on this subject 2 years ago, when he said, in terms of its,
``organization, programs, procurement and covered activities,
Iran is pursuing the classic route to nuclear weapons, which
has been followed by almost all states that have recently
sought a nuclear capability.''
Now, more recently, there have been several public reports
of U.S. Government efforts to persuade Russia not to assist
Iran in the development of a nuclear capacity and of
operational reactors. There have been reminders from Russia
that Iran is a signatory of the NPT and, as such, has a right
to assistance in developing a nuclear capacity for peaceful
use. I believe, Mr. Chairman, that there has been far too
little attention given to this problem, the principal source of
nuclear proliferation.
It was also in my U.N. years that I first became really
sensitive to the issue of the composition of the governing
board of the IAEA. Senator Biden may think I am not keeping my
eye on the ball. But I assure you, Senator Biden, I am.
As for the composition of the governing board of the IAEA,
Iraq, as I am sure many of you know, sat on the governing board
of the IAEA through just exactly that period that it was
violating its own promises not to undertake development of
nuclear weapons.
It also was violating, at that very moment, already
existing promises not to use poison gases in war. Iran and Iraq
are two of the countries in the world that have already
violated the Geneva Protocol against using poison gases. As we
all understand, I think, there is already an operative treaty
which forbids the use in war of, ``asphyxiating, poisonous or
other gases,'' which is the Geneva Protocol of 1925.
Now, Mr. Chairman, many people speak of the Nuclear
Nonproliferation Treaty and its verification regime as if it
had prevented the proliferation of nuclear weapons. If that
were the case, Mr. Chairman, Iraq, North Korea, India, and
Pakistan, among others, would not today have either advanced
programs for producing nuclear weapons or the weapons
themselves. But, of course, they do.
There is a kind of strange silence which shrouds the facts
of nuclear proliferation. Even the U.S. Government has been
strangely reluctant to face facts about the failure of the
Nuclear Nonproliferation Treaty to prevent proliferation. But
if our government and our allies had faced facts about the
nuclear proliferation facilitated by the NPT, they would
presumably not have reproduced Article XI and other key
loopholes in the Convention on Chemical Weapons which have
permitted and facilitated proliferation.
But, of course, in the Convention on Chemical Weapons, they
have paragraphs which call for sharing technology among the
signatories and forbid efforts to restrict or impede trade in
development and promotion of scientific and technological
knowledge in the field of chemistry--for peaceful purposes, to
be sure. I think the spirit of the CWC is, ``share now'' the
treaty counsels, ``verify purposes and intentions later.''
Mr. Chairman, my years at the United Nations sensitized me
to the composition of governing boards of the United Nations.
All too often, the composition of those governing boards simply
reflect the bloc system and its operation in the U.N.; it
dominates many processes of the U.N. The bloc system is purely
geographical and political in character, and takes little or no
account of technical competence or democratic representation--
or of who pays the bills, I might add.
I believe that the Senate should take specific note of the
composition of all the international boards entrusted to
enforce international covenants, boards which make important
decisions affecting our country. The CWC governing board will
be chosen on a basis that gives little weight to competence,
because the IAEA's governing board is used as a model. The
IAEA's verification regime has not been able either to verify
or to enforce the Nuclear Nonproliferation Treaty.
As we can learn hard lessons about failures of the IAEA
regime to adequately verify violations of the NPT, so, Mr.
Chairman, can we learn some hard lessons from the IAEA
experience, about the non-enforceability of just such treaties.
What happens when violations of the Nonproliferation Treaty
are discovered? This is a very important question. There are
the questions of verifiability and enforceability. What happens
when a nation which has signed the Nuclear Nonproliferation
Treaty is discovered to be in violation?
The answer is: Not much.
Iraq has suffered some penalties because of its violations
of the NPT. But it has suffered, because it invaded a
neighbor--namely, Kuwait--not because it cynically violated the
NPT norms.
I believe that the composition of the governing board of
the Chemical Weapons Convention, the OPCW, guarantees that
countries with the greatest technical knowledge will be in a
permanent minority in that decisionmaking group. The important
decisions will be made by the OPCW; but the United States and
Western Europe, the most highly industrialized and technically
sophisticated countries, will be in a permanent minority in
that group.
The United States has no guaranteed seat in that governing
body. Neither the amount of our financial contribution nor our
technical competence guarantees us a seat. We will compete for
a seat with the other most highly industrial countries for 10
of 41 seats. Asia will have nine. There will be one rotating
seat. Latin America and the Caribbean will have seven. Africa
will have nine. Eastern Europe will have five. What we in the
U.N. call WEOG, Western Europe and others group--and we fall in
that group--will have 10.
I am not certain, Mr. Chairman, where Russia falls in these
groups today. Probably in Eastern Europe, but maybe not. There
would have to be some special provision made. That is
important, since, if indeed Russia ratifies the treaty, it is
eligible to sit on the OPCW. It may not. It has signed but not
yet ratified, of course.
But the composition of the OPCW explains why its decisions
are not likely to take account of the best technical
information available. Not only that, the method of composition
of that group explains why most efforts by U.N. bodies to
develop operational groups fail. Because the members of the
group are chosen on the basis of criteria which are irrelevant
to their ability to perform, with technical competence, the
task of the group.
From experience with the NPT and the IAEA, I believe we
have had a great deal of opportunity to learn about the
problems of verification and enforceability. The IAEA's
verification procedures, of course, require prior notification
and consent of the party to be inspected including the parties
inspected, the right to approve or veto the composition of the
teams of inspectors.
Now, we all know that Iraq's nuclear projects and its
progress were discovered only as a consequence of their defeat
in the Gulf War. Iraq's violations of NPT have been discovered
again and again, as we keep finding things we did not know and
new information about aspects of their program that we were
unaware of by virtue of our access through the armistice and
their defeat in the Kuwaiti War. It was not the result of IAEA
inspections. Routine procedures for verification did not reveal
Iraq's large nuclear project.
Now, as everyone knows, it is much simpler to develop
chemical weapons than nuclear weapons. It is much easier to
procure and hide the components. As everyone knows, the
technology required in developing nuclear weapons is much more
complex and esoteric than chemical weapons. Everyone knows that
chemical weapons rely largely on dual-use substances that are
common in everyday life. Chemical weapons can be manufactured
with uncomplicated technology.
That is, I think, why, in the 1980's, when I was at the
United Nations, it was commonplace to hear Third World
spokesmen refer to chemical weapons as the Third World's
nuclear bombs. Even very technologically underdeveloped
countries could produce them. It was suggested often that it
was not quite cricket for the devel-
oped countries to try to deprive the least developed countries
of the Third World weapons of mass destruction.
I do not think any of us need weapons of mass destruction,
quite frankly, to prove that we can survive in the contemporary
world.
Mr. Chairman, I believe that the Senate should face the
fact that ratifying this treaty will not prevent the
manufacture or use of chemical weapons. That is precisely the
point. The Chemical Weapons Convention is neither verifiable
nor enforceable.
Proponents sometimes say, so it is not perfect. Is not
something that is not perfect better than nothing at all?
I do not think that is necessarily so, particularly since
the countries that have signed and ratified the Convention are
countries about which we would never worry about using chemical
weapons. The countries that have neither signed nor ratified
are countries that we are most likely to worry about--the so-
called rogue states or outlaw nations--Syria, Iraq, North
Korea, Libya. Those are the countries we worry about.
We do not worry about Britain, France, the WEOG, and the
Australia Group. I do not worry a bit about the Australia
Group. Those are our best friends. They do not need to worry
about us either, I might say.
The treaty's advocates simply ignore the fact that the
treaty cannot help us monitor the production of these weapons
by states most likely to use chemical weapons. Why, then, have
so many countries signed on to a treaty that can offer so
little protection?
I believe, Mr. Chairman, that it is simply wishful
thinking, frankly. I believe it is hoping and pretending that
something that you want to be verifiable, enforceable, and
universal may actually turn out to be that, in spite of the
fact that, from experience, we know it is not and will not.
We should also face the fact that signing the treaty will
not prevent signatories of bad will from breaking their
promises not to produce noxious gases. We know that Russia has
in fact already, in its continuing production of noxious gases,
broken two sets of promises--not the promises of the treaty,
but bilateral promises to the United States involving the
production of nerve gases and the failure to destroy gases
which they had agreed to destroy. Countries do not necessarily
keep their promises.
Advocates of the treaty argue it would surely do some good
and, at the very least, would do no harm.
Mr. Chairman, I believe that the Chemical Weapons
Convention will actually make the world more dangerous. That is
why I came today. I believe the treaty will hasten the spread
of advanced chemical weapons, as I believe a comparable treaty
has hastened the spread of the technology for nuclear weapon
construction--and that is not all.
Mr. Chairman, I recently asked a French friend, who happens
to be visiting just now, did the Maginot Line do France any
harm in World War II?
Well, I think most French think so. It gave them the
impression that they had dealt with a dangerous threat--an
invasion from the east, across their borders--when in fact they
were in as much danger as before. The Maginot Line created a
comforting illusion which lulled France into a false sense of
security.
I believe the world is probably less dangerous today, Mr.
Chairman, than at any time in my life--or certainly than in
most of my life. I cherish this sense of lessened threat. I
love it. But I believe we are not so safe that we can afford to
create a false sense of security by pretending that we have
eliminated chemical weapons.
President Clinton said in one statement that I read: ``We
will have banished poison gas from the Earth.'' Well, that is
poetic license or a politician's license or perhaps a
President's license, but it surely is not an accurate statement
about what will be the case. The countries most likely to
produce and use poison gas are unaffected by this treaty.
I think the Senate, personally, should reaffirm the U.S.
sense of responsibility and our commitment to that
responsibility toward preserving a peaceful world and decline
to ratify this treaty unless or until progress is made toward
making it more verifiable, enforceable, and universal. There is
still a long way to go.
Thank you, Mr. Chairman.
[The prepared statement of Ambassador Kirkpatrick follows:]
Prepared Statement of Dr. Jeane J. Kirkpatrick
Mr. Chairman, thank you for inviting me to testify before this
distinguished committee today.
The subject of today's hearing is important. The Senate's decision
will be more important. I have followed this issue with interest since
my tenure as U.S. Permanent Representative to the United Nations under
Ronald Reagan brought several such proposed covenants to the forefront
of my attention.
It was then that I first became aware of the fact that the Nuclear
Nonproliferation Treaty (NPT) was being used to achieve very different
purposes than those for which it was intended--that it was being used
to acquire and spread the technology and products needed to produce
nuclear weapons rather than to prevent their spread.
It was even then understood among the informed public that by
signing the treaty a country--such as Iraq--acquired a ``right'' to
share technology needed to produce nuclear products.
By now, it is generally understood that the shortest route to a
nuclear capacity is through the NPT. Iran is traveling that road today.
We and other signatories are helping finance their development of a
nuclear capacity. Secretary of State Warren Christopher said on this
subject, ``Based upon a wide variety of data, we know that since the
mid-1980's, Iran has had an organized structure dedicated to acquiring
and developing nuclear weapons.'' He added that in terms of its
``organization, programs, procurement, and covert activities, Iran is
pursuing the classic route to nuclear weapons which has been followed
by almost all states that have recently sought a nuclear capability.''
[F.N. Bulletin of Atomic Scientists, 7/95. Vol. 51, Issue 4, page 23.]
More recently there have been several public reports of U.S.
Government efforts that persuade Russia not to assist Iran in the
development of its nuclear capacity and reminders that Iran--a
signatory of the NPT--had the right to assistance in developing a
nuclear capacity for peaceful use. There has been far too little public
attention to this--the principal source of nuclear proliferation.
It was also in my U.N. years that I first noticed the composition
of the governing board of the International Atomic Energy Agency
(IAEA). Iraq sat on the governing board of the IAEA and were at that
very time violating promises not to undertake the development of
nuclear weapons--promises not to use poison gases in war. [Iraq did
both.] Several of the same countries have already violated commitments
not to use poison gas in war, for, as we all understand, there is
already an operative treaty which forbids the use in war of
``Asphyxiating, Poisonous or Other Gases.'' It is the Geneva Protocol
of 1925.
Mr. Chairman, many people speak as if the Nuclear Non-Proliferation
Treaty and verification regime had prevented proliferation of nuclear
weapons. If that were the case Iraq, North Korea, India, Pakistan would
not have either bombs today nor advanced programs for producing them.
But they do.
A strange silence shrouds the facts of nuclear proliferation. Even
the U.S. Government has been strangely reluctant to face the facts
about the failure of the NPT to prevent proliferation. But it is an
open secret that the Nuclear Non-Proliferation Treaty has been a source
of proliferation of nuclear technology. It is also perfectly clear that
the CWC will facilitate the spread of chemical weapons through
provisions in Chapter Eleven of the treaty that call on countries with
a developed chemical industry to share their advanced technology with
less developed countries.
If our government and our allies had faced facts about the nuclear
proliferation facilitated by the NPT they would presumably not have
reproduced in Article XI the loopholes that have been permitted and
facilitated it. But they have in the paragraphs which call for sharing
technology among the signatories and forbid efforts to ``restrict or
impede trade and development and promotion of scientific and
technological knowledge in the field of chemistry * * * '' for peaceful
purposes to be sure.
Share now, the treaty counsels, verify purposes and intentions
later.
My years at the United Nations also sensitized me to the
composition of the governing boards of U.N. bodies. All too often the
composition of governing boards simply reflects the bloc system which
dominates many processes in the United Nations. The bloc system is
purely political/geographical in character. It takes little or no
account of technical competence and standards, of democratic
representation, or of who pays the bills.
The Senate should take careful note of the IAEA governing board.
Iraq served on the governing board of the IAEA the entire time that
it was working to develop nuclear weapons in violation of its pledge.
It is not the only known violator to be selected for that board. The
Chemical Weapons Convention (CWC) governing board will be chosen on a
basis that gives still less weight to competence.
The IAEA's verification regime often regarded as a model has not
been able either to verify or to enforce the NPT.
As we can learn hard lessons about failures of the IAEA regime to
adequately verify violations of the NPT, so we can learn about the non-
enforceability of such Treaties. What happens when violations are
discovered? Not much. Iraq has suffered because it invaded a neighbor,
not because it cynically violated NPT norms.
The composition of the governing body of the Organization for the
Prohibition of Chemical Weapons (OPCW) guarantees that countries with
the greatest technical knowledge will be in a permanent minority. There
are no permanent members on the OPCW and no vetoes.
The composition of the Executive Council of the OPCW explains why
the U.N. bodies fail at operational efforts, through their validity as
representational bodies.
From experience with the NPT and the IAEA we have had the
opportunity to learn a good deal about the problems of verification and
the weaknesses of the verification regime that was developed to prevent
the proliferation of nuclear weapons and the inadequacy of the IAEA's
verification procedures that require prior notification of the party to
be inspected, consent of the inspected party, and a right to approve or
veto the composition of the team of inspectors.
Iraq's large, advanced nuclear development project was discovered
only as a consequence of their defeat in the Gulf War NOT as a result
of IAEA inspections. Likewise, North Korea's large nuclear development.
And as everyone knows, it is much simpler to develop chemical than
nuclear weapons, much easier to procure and to hide the components.
Nuclear weapons require weapons grade plutonium. The technology
required in developing nuclear weapons is more complex and esoteric.
But chemical weapons rely largely on dual use substances common in
everyday life, small space, and uncomplicated technology. That is why
in the 80s chemical weapons were sometimes called the ``Third World's
nuclear bombs.'' Even very technologically underdeveloped countries
could produce them.
The Senate should face the fact that ratifying the treaty will not
prevent the manufacture or use of chemical weapons. The Chemical
Weapons Convention is neither verifiable nor enforceable. Proponents
attempt to dismiss the many loopholes in the treaty with the assertion
that nothing is perfect. But perfection is not the question.
Proponents seek to minimize the fact that the countries with the
most highly developed programs either have signed but not ratified the
treaty--Russia, China, Cuba, Iran, Vietnam--or have not signed at all--
Syria, Iraq, North Korea, Libya--but signing does not solve the
problem. Signing will not prevent signatories from breaking their
promises not to produce noxious gases as Russia has recently broken a
promise to the United States.
And the treaty's advocates simply ignore the fact the treaty cannot
help us monitor the production of the states most likely to use
chemical warfare.
Why then have so many countries signed on to a treaty that can
offer so little protection?
Only wishful thinking encourages it. It is as if pretending that
the treaty were verifiable, enforceable, and universal would make it
so. But it doesn't. It also will not prevent signatories from breaking
their promises not to produce noxious gases as Russia has recently
done.
But surely it would do some good, treaty advocates argue. At the
very least we can say it would do no harm.
Mr. Chairman, it is because I believe the CWC would actually make
the world more dangerous that I am here. I believe the treaty will
hasten the spread of advanced chemical weapons as it has nuclear
technology.
Americans working for ratification of the CWC should take a hard
look at what happened in the United Nations Human Rights Commission
meeting in Geneva this week. The United States could not even get a
discussion of China's human rights violations put on the agenda.
For the seventh straight year China was able to prevent
discussion--much less censure--of its deeply shocking treatment of
Tibet and all manner of dissidents and to do so by a comfortable 27 to
17 margin (with nine abstentions). China won the vote with strong Third
World support, including some close U.S. associates such as Egypt,
India and Indonesia.
China's chief delegate, Wu Jianmen, explained later the vote showed
that the Third World ``identified'' with China. He also emphasized the
failure of some close U.S. allies (France, Germany, Italy, Spain,
Japan, Greece, Italy, Canada and Australia) to co-sponsor the
``Western'' resolution this year, because, he said, they ``want dialog
and cooperation and not confrontation.'' In truth China won the vote
because there is weak support for democracy beyond North America,
Europe, and a few Asian and South American states, and also because
China mounted a tough worldwide campaign--that included arm-twisting
and threat of economic consequences. A belated U.S. effort to rally
support--including personal intervention by Secretary of State
Madeleine Albright--did not help much.
This shameful outcome was not a defeat for the United States or the
countries sponsoring the resolution. It was a defeat for humane values
and rational discussion of deeply serious moral and political issues.
It was a defeat for victims of repression and for the very purposes for
which the United Nations was founded. This outcome in the Human Rights
Commission is a harsh reminder that the United States often cannot win
votes for its basic values and interests in U.N. arenas--even when the
issue is purely symbolic and the U.S., itself, and most of our
principal allies are present.
The balance of power would be much less favorable to the United
States in the governing body that will implement the Chemical Weapons
Convention.
In pressing the Senate to ratify the CWC quickly, before the treaty
enters into effect on April 29, the Clinton administration has argued
that by getting in on the ground floor the United States will be
assured of having an important voice in shaping the structure and
function of the organization. But that is not so. The composition and
structure of the governing body of the CWC are prescribed in the
treaty. The treaty, itself, hands us a stacked deck with which to play
for influence.
The United States, Great Britain, France, Russia and China (that
is, the permanent members of the Security Council) are all guaranteed
seats on the Human Rights Commission but not on the Executive Council
that will administer the CWC. The 41 members of that Executive Council
will be designated from the U.N.'s standard geographical groupings and
elected by all the signatories of the CWC for 2 year terms. There will
be no permanent members and no vetoes.
The United States is a member of the WEOG (Western European and
Other Group) which is allotted 10 seats on the 41 member Executive
Council that also provides nine seats for Asia, seven for Latin America
and the Caribbean, nine for Africa, five for Eastern Europe plus one
rotating seat. To win one of the 10 WEOG seats for a 2-year term, the
United States will need to compete with the other Western industrial
democratic nations who altogether will have only 10 of 41 seats (or 15
of 41 seats if we count Eastern Europe; or 16 of 41 with all of Europe
plus Japan).
In this competition our friends in the European Union will have 15
votes to our one vote. Therefore, the United States would frequently
fail to gain a voice in the decisions of the Executive Council. Neither
the amount of our financial contribution nor our technical competence
would guarantee us a seat.
The draft of the CWC supported by the Reagan administration guarded
against this possibility. It provided that permanent members of the
Security Council would be members of the Executive Council that
implements the treaty. This would have guaranteed representation of the
most powerful nations and those with the most highly developed chemical
industries. The CWC which is now before the Senate operates on the
basis of one country, one vote.
The fact that the United States might have no voice in setting
policy for implementing the CWC but would surely be bound by its
decisions is one important reason that the U.S. Senate should not
ratify this treaty.
There are others.
Most of the countries in the Human Rights Commission have ratified
the Declaration on Universal Human Rights.
Will the United States ratifying the CWC make the world safer?
Mr. Chairman, did the Maginot Line do any harm to France in World
War II? Most French think so. It gave them the impression that they had
taken care of a dangerous threat: an invasion from the East; when in
fact, they were in as much danger as ever. The Maginot Line created a
comforting illusion which lulled France into a false sense of security
and facilitated Hitler's conquest.
The world is less dangerous today than during most of my lifetime.
I cherish this sense of lessened threat. But we are not so safe we can
afford to create a false sense of security by pretending that we have
eliminated the threat of chemical weapons. President Bill Clinton said,
``We will have banished poison gas from the Earth.'' It will not be so.
We had better do some hard thinking about how to defend ourselves and
the world against the poison gases that have been and will be produced
whether or not we ratify.
I think the Senate should reaffirm the U.S. sense of responsibility
and commitment to a peaceful world and decline to ratify this treaty
unless or until it becomes verifiable, enforceable, and universal.
There is a long way to go.
Thank you.
The Chairman. Thank you, Madam Ambassador.
Let me say to the visitors here today and those who are
watching on television that I have been to several functions
that shared the podium with the distinguished Jeane
Kirkpatrick, who, by the way, is a Senior Fellow of the
American Enterprise Institute and, as almost everybody knows,
she is a former U.S. Ambassador to the United Nations. But
everywhere I go or have gone, where she has appeared likewise,
I have sensed that she is one of the most respected women in
America. We are honored to have you with us today.
Ambassador Kirkpatrick. Thank you, Mr. Chairman.
The Chairman. Now, we move to Mr. Richard N. Perle, who is
one of the best informed individuals I know. He is formerly
Assistant Secretary of Defense for International Security
Policy. I do not know how many times I have called on Richard
for information and guidance on various issues. We are
certainly glad to have you here, and you may proceed, sir.
Senator Biden. Mr. Chairman, you do not have any idea how
many times we have regretted that you called on him, because he
is so persuasive. I hope you are not so good today, Richard.
The Chairman. Just watch him.
STATEMENT OF RICHARD N. PERLE, FORMER ASSISTANT SECRETARY OF
DEFENSE FOR INTERNATIONAL SECURITY POLICY
Mr. Perle. Mr. Chairman, thank you very much for inviting
me.
Senator Biden, I can assure you I would not have come today
if I did not think there was a very strong case to be made. I
will try to take seriously your injunction to keep my eye on
the ball.
In fact, I think my colleague and friend Jeane Kirkpatrick
clearly identified the ball when she described the way in which
the Nonproliferation Treaty, without anyone ever having
intended that it should work this way, had the effect of making
technology for the production of nuclear material far more
readily available than it might have been otherwise--a defect
that unhappily is reproduced like a computer virus in the
Chemical Weapons Convention.
Before I get into the key point I want to make today, let
me say that I have chosen to focus on one issue--one rather
narrow issue. I think that is in fact the ball that Senator
Biden has in mind. My colleague Doug Feith, from whom you will
hear shortly, has prepared a more comprehensive statement that
deals with other aspects of the treaty in a thoroughly
convincing and understandable way. I agree entirely with the
points that Doug will soon be making.
But I want to restrict myself to one key point. That is, as
it happens, the point that Sandy Berger was concerned to deal
with in the letter with which he provided you. I take that
letter as confirmation of the fact that the National Security
Adviser, like others, have begun, under the exigency of
imminent action on this treaty, to understand that there are
problems in the treaty that need to be addressed. I wish they
had been addressed at an earlier stage in the proceedings. That
is to say, while the treaty was under negotiation. Because had
the ball that Sandy Berger has now found been seen earlier, we
would have a treaty without Article X in it, and probably
without Article XI in it.
Had we been more attentive, had we learned the lesson of
the Nonproliferation Treaty, had we thought through the means
by which countries may in future acquire a meaningful military
chemical weapons capability, I am quite convinced that we would
not have allowed Article X to become a part of this treaty.
What Jeane had to say about the Nonproliferation Treaty
applies to this Convention in spades. The reason why I say in
spades, Mr. Chairman, is that the production of nuclear
material clandestinely from facilities that are intended for
peaceful purposes and that are monitored by the IAEA--not
perfectly, but monitored--is a very difficult thing to
accomplish. Building nuclear power plants is not easy.
Operating them is not easy. Handling nuclear material is not
easy.
Chemical weapons, on the other hand, pose an entirely
different set of issues. The production of lethal chemicals
which can be used for military purposes is not difficult. Any
facility capable of producing insecticides, any facility
capable of producing fertilizer can, with relatively minor
modifications--well within the capacity of any country that has
an insecticide or a fertilizer plant--be converted to the
production of chemicals. Indeed, some of the chemicals of
concern are not even barred under this treaty, because they are
already so widely spread around the world.
So the acquisition of lethal chemicals for military
purposes is easy. But the possession of lethal chemicals is
not, by itself, sufficient to constitute a military capability.
Because in order to use chemical weapons for military purposes,
you have to be able to protect your own troops. The soldiers
that go into the field, the pilots that drop canisters, the
artillerymen that launch chemical shells all need to be
protected themselves. Otherwise, their missions become
suicidal. They are difficult enough even if they are protected
themselves.
So what is difficult about acquiring a chemical weapons
capability, a military capability, is not the offense; it is
the defense. The offense is easy. The defense is very hard.
Article X of this treaty says that the parties to the
treaty, the signatories, will be entitled to receive help in
the development of the hard thing--the defensive capabilities.
In fact, it requires participants who enter into this in good
faith to assist them.
I want to read the exact words of Article X, because I have
a feeling that, by the time the Senate votes, everyone will
have understood that this is the ball that we have to keep
clearly in focus. Paragraph 3 of Article X reads as follows:
Each state party undertakes--undertakes--to facilitate and
shall have the right to participate in the fullest possible
exchange of equipment, material and scientific and
technological information concerning means of protection
against chemical weapons. The parties undertake.
Paragraph 6 of Article X reads:
Nothing in this convention--nothing in this convention [if
we had drafted this up here, it would say notwithstanding any
other provision of law] nothing in this convention shall be
interpreted--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.
So Article X not only pledges the parties, they undertake
to share everything that is hard to achieve in a chemical
weapons capability--the defensive side--but, in fact,
anticipating the possibility that someone might say, well, we
interpret this differently, words have specifically been
included that say nothing in this convention shall be
interpreted as impeding.
Now, what are we talking about when we talk about the
assistance, the fullest possible exchange, and so forth? That
is defined in Article X. It refers inter alia to detection
equipment and alarm systems, protective equipment,
decontamination equipment and decontaminants, medical antidotes
and treatments, and advice on any of these protective measures.
In short, everything you need, combined with the offensive
chemicals themselves, to constitute a militarily effective
chemical weapons capability.
Senator Biden. Mr. Chairman, I am sure Mr. Perle would not
mind my asking. Can I ask a clarification question?
Mr. Perle. Sure.
Senator Biden. What does Paragraph 7 mean?
Mr. Perle. The paragraph I read to you, nothing in this
convention shall be----
Senator Biden. No. Each party undertakes to provide
assistance through the organization and, to this end, to
elect--to elect to take one or more of the following measures.
Does that modify it? That is all I am trying to bring up.
Mr. Perle [continuing]. No. I do not believe it does.
It sets up a mechanism, which actually makes matters a
little bit worse. Because the Secretariat will become a
repository--not the only repository, because this envisions
bilateral cooperation, as, for example, between China and Iran
or China and Pakistan. But the Secretariat will now become a
repository of information about defensive technology.
So the span of control of the United States will be
diluted, to the extent to which the United States does not
constitute the Secretariat all by itself, which of course it
will not.
Senator Biden. I thank you. I have a different view, but I
will wait until my time for questions.
Mr. Perle. So I think it is reasonable to speculate that if
we go ahead and approve this convention as it is now written,
we will look back 1 day--5 years from now, 7, 10 years from
now, maybe sooner--and we will unhappily identify states who
got their chemical weapons capability through the sharing that
is going to take place pursuant to Article X.
The administration argues that, well, we are not going to
do that. Of course, we are not going to give our defensive
technology to rogue states. You would have to be out of your
mind to do that. We have no intention of doing that. It is
certainly the right of the administration to enter into an
undertaking without any intention of carrying it out, because
it runs counter to one's common sense. Some people would call
that bad faith. I think it would be justified bad faith if we
were unhappily unable to avoid the undertaking in the first
place, which we are still in a position to avoid.
But there are a great many other countries that also
possess defensive capabilities and defensive technology. They
may not be so willing to act in bad faith. Indeed, they may be
actually rather eager to find a basis for sharing the kinds of
defensive technologies, equipment, know-how, and so forth that
we are talking about here.
So if, for example, the challenge were to discourage the
Chinese from assisting the Pakistanis, would not the Chinese
invoke Article X of the treaty and say, we understand your
feelings about this, Mr. President, but we undertook to share
this technology. You are not asking us to violate a solemn
undertaking, are you?
I think our capacity to persuade others will be
significantly diminished by virtue of the undertakings in
Article X, which we may enter into in bad faith, but others
will not.
Let me give you a proliferation scenario just for
illustrative purposes. Let us take Iran as the example. Iran
has already signed, and I assume it will ratify the convention.
I think there is evidence that Iran presently has a chemical
weapons capability. But let us say that the Iranians, upon
entering the Chemical Weapons Convention, decide to abandon
that offensive capability. It is a matter of converting some
plants that are now producing chemicals to the production of
insecticide or fertilizer. What can you do from left to right,
you can do from right to left.
So Iran now ceases to have an offensive chemical weapons
production capability. It is, therefore, in strict compliance
with the terms of this convention. That is what I would do if I
were Mr. Rafsanjani and wanted a chemical weapons capability.
Because I do not today have the defensive side of the equation.
So I would eliminate any violation by ceasing illegal
activity. Now I would invoke Article X, and I would go to other
countries and say, ``We have no offensive capability. We are in
full compliance. You are obliged--you have undertaken to share
with us the defenses.'' I promise you there will be countries
that will accommodate them--for a price--maybe even without
insisting on much of a price. Who could argue against it, since
they will be, at that point, in full compliance?
So a period of time elapses, during which the Iranians, who
were clever, acquire all the defensive technology they need.
They acquire, in the words of the treaty, detection equipment
and alarm systems, protective equipment, decontamination
equipment and decontaminants, medical antidotes and treatments,
and advice on all of the above.
Once they have that firmly in hand, once they have the
difficult part of acquiring a chemical weapons capability, now
they restart the production of offensive chemicals. But it is
too late. We will have supplied them the thing that they cannot
now easily achieve. They will put part A and part B together,
and they will have a chemical weapons military capability. The
instrument by which they will have achieved this is the
convention that we are now talking about ratifying.
Let me conclude, Mr. Chairman, by saying two other things.
One about how we could get into this situation. How could we be
at this stage of the proceedings, with so many countries having
signed this agreement, with the Senate about to take it up,
having overlooked--because that is the only fair way to
describe it--the portentous implications of Article X?
There is another article, Article XI, which tends very much
in the same direction, and I think it will have a similar
result.
I had occasion to discuss this treaty recently with a
senior official of this government, a cabinet level official. I
asked this person about Article X. This person did not know
about Article X. Now, Article X has become better known in the
last 72 hours. But a couple of weeks ago, there were an awful
lot of very senior officials of this government who did not
know about Article X and did not know about the problem.
You wonder how this could happen. Well, it happens in the
following way. The United States makes a decision to propose a
treaty on chemical weapons and a draft is put together. The
draft did not have Article X in it. We sent a team of people to
Geneva, and they come back 10 years later, basically. For 10
years, they are working away on this convention.
The people who are receiving their cables in Washington are
very often people who were in Geneva, because there is a kind
of rotation. This is how it works in the real world. So you get
an intellectually incestuous relationship among the Geneva
people and the Washington people, with almost no adult
supervision. The individuals involved in this invest a great
deal of their time, years of their lives, in attempting to
bring about a treaty.
Somebody insists on an Article X, or maybe a group of
countries insist on an Article X. It is 10 years after we got
started on this, and we want to bring this treaty home. It is
the experts who are making the decision. No President reads the
treaty. No Secretary of State reads the treaty. No Under
Secretary. No Assistant Secretary. I promise you, Mr. Chairman,
this treaty, 160 pages long, has not been read by anyone who
was not paid full-time to work on it.
So terrible mistakes can be made--mistakes in which
somebody loses sight of the ball along the way. That is what
comes to the Senate for ratification.
One last point. Senator Feinstein asked about verification.
How would verification be improved if the United States
remained outside the treaty? It is a fair question. The answer
is counterintuitive. So let me take a quick shot at it.
I think it would be improved in two ways. First of all, I
think we would do a better job of keeping to ourselves the
means by which we detect violations. Jeane Kirkpatrick made
reference to the fact that Iraq had served on the governing
board of the IAEA. They were there for a good reason.
The Iraqi Government did not contribute the full-time
talent of one of its senior officials for the benefit of the
IAEA; I promise you that. He was there to learn as much as he
could learn about how the IAEA went about detecting illegal
activity. He was an intelligence officer. I promise you that
the organization responsible for implementing this agreement
will be full of intelligence officers, including intelligence
officers from countries who are eager to discover how they
might be caught if they had a clandestine program.
So we will end up educating the very people whose programs
we are trying to stop in how to avoid getting detected in the
first place. So that is one way in which we will be worse off.
We do not have to educate them now, but we will then.
Second, and this is a more subtle point, once activity
becomes illegal, the way in which information about it is
collected and analyzed and reported acquires an entirely
different meaning than when it is simply intelligence about the
activities of others.
When we are interested in the capabilities of a Russian
missile, we employ technicians who look at the test data that
they are able to acquire, who look at photography, who look at
all sources of intelligence; and they make a judgment about the
capability of that missile; and they say how far they think it
can go; and they say what size warhead they think it can carry.
They say everything to the best of their ability about that
missile; and they do not think about the implications of their
answer, because their job is to unearth the truth about that
missile.
But now, suppose there is an arms control regime in which
that missile, if its range is over 600 kilometers, is a
violation of a treaty; but if it is only 595 kilometers it is
not a violation of a treaty, and you are now responsible for
deciding whether to send to the President a report that says,
we believe the range of this missile to be 650 kilometers,
which has very important political implications. At that point,
an element of political judgment enters into the assessment of
intelligence.
I saw this day in and day out as we grappled with the
question of how to interpret what we were seeing in the old
Soviet Union in the cold war days, so I believe that the
objectivity with which we view the evidence becomes inevitably
colored by political considerations when the issue is not, what
do we know, but is what we know going to touch off a crisis
because we have now caught someone violating the treaty; and
that requires some response on our part.
So I do not accept the now hourly-passed-off view that we
are going to do more with this treaty than without it, which is
the conventional wisdom; but I think it overlooks these two
very important points.
I am sorry for going on too long, Mr. Chairman. Thank you
very much.
The Chairman. You have not at all, and I thank you very
much.
Now we have another long-time friend of all of us, Dr. Fred
Ikle, former Director of the Arms Control and Disarmament
Agency. We appreciate you coming, sir. We will be glad to hear
from you now.
STATEMENT OF DR. FRED C. IKLE, FORMER DIRECTOR, ARMS CONTROL
AND DISARMAMENT AGENCY
Dr. Ikle. Thank you, Mr. Chairman. I am honored to be
invited here.
The previous witnesses, Ambassador Kirkpatrick and Richard
Perle, made so many of the important points of what effectively
is a sad story that I can be quite brief. It is a sad story;
because as witnesses yesterday mentioned, there were good
intentions behind this treaty, and we all are--the witnesses
yesterday and today--are horrified by the potential of chemical
weapons and would like to see them banished from the face of
the Earth.
Ambassador Kirkpatrick very tellingly brought back the
nonproliferation treaty, which of course was preceded by the
Atoms for Peace program. President Eisenhower with that program
also had very good intentions. In fact, he got enormous kudos
in the press when he presented that program. It was one of his
greatest public affairs successes, and--as it turns out now
from hindsight--one of the main contributors to nuclear
proliferation.
I can add to the telling points Richard Perle made about
Article X and the related culprit, Article XI about the
assistance in chemical manufacturing technology. Here, there is
something a bit startling in the discussion we had. By and
large the discussion in Congress and in the media has been very
thoughtful on both sides, serious arguments, honestly felt.
It is all the more regrettable here that on the question
relating to Article XI it looks like some misinformation has
deliberately been infiltrated into our discussion, and that is
the allegation which a number of people here picked up
innocently, the allegation that the United States would lose
seriously in chemical manufacturing exports if we did not
ratify the treaty.
For a while, the administration spokespersons mentioned a
number like $600 million lost per year in U.S. exports,
legitimate chemical manufacturing exports. When pressed on
where that number came from, the administration said: ``talk to
the Chemical Manufacturing Association.'' When the people there
were asked, they really were unable to give an explanation.
So we did some further digging into this question; and it
turns out the only exports that the U.S. could no longer make,
if it did not become a party to the treaty, to other treaty
members like Germany, Japan, and the U.K., would be the poison
gas itself, which of course we do not want to be exporting, and
the most dangerous ingredients to be used in gas warfare.
Schedule I type chemicals is poison gas itself. There are
no exports, obviously, from the United States of any
importance. Schedule II, that may have some role in pesticides,
but exports are much more limited than the $600 million figure
suggested.
So why has this export damage been so vigorously mentioned,
particularly by the Chemical Manufacturing Association
representatives that are urging the Senate to ratify this
treaty? I think the answer, I believe, is that some people
there relish the prospect that the Chemical Weapons Convention
would undo the restrictions of the Australia Group, precisely
the thing Senator Biden expressed serious concern about, and
rightly so.
Now, this is a serious charge to make, and maybe I had
better have a couple of exhibits for my case. One, I was not
able to fully nail down. Maybe you could have this done, Mr.
Chairman. Last fall, in the House of Representatives, a step
was taken--exactly where it came from I do not know, it would
seem to have the support of the Chemical Manufacturing
Association--to lift the licensing requirements for chemical
weapons exports to the member states of the convention before
even the United States had ratified the treaty.
Then, Members--colleagues of yours--I think yourself, Mr.
Chairman, Senator Pell, Senator Glenn, Senator Kyl in a
bipartisan effort stopped that premature dismantling of our
licensing requirements.
The more definitive exhibit goes further back. In testimony
before this committee on June 9, 1994, a spokesman conveying
the support of the Chemical Manufacturing Association said, and
I quote, ``There are several significant reasons why the
chemical industry supports the CWC. Those chemical
manufacturers do not make chemical weapons. Our industry does
produce commercial chemicals which can be illegally converted
into weapons. An effective CWC could have the positive effect
of liberalizing--liberalizing the existing system for export
controls applicable to our industry's products, technologies,
and processes.''
So I think there is at least a partial explanation for the
enthusiasm of the CMA for this treaty. Now, that is perhaps in
some ways a serious charge. I think it is.
Let me add one more point there. To the extent I have been
able to find out, and I know some other people have confirmed
this, this is not a charge against the most senior officials of
the industry who are members of the association. I have talked
to CEO's of large chemical companies, including in Delaware,
who have never heard of the treaty while it was in process and
while the representatives here in town of the CMA have been
working together with this club in Geneva that Richard Perle
described, and nourished the support for this treaty.
So I think we have to first of all get rid of the idea that
not ratifying the treaty would damage the exports of the United
States chemical industry, the legitimate, important exports;
and second I think we have to put a question mark behind the
support alleged by the CMA of the responsible senior officials
in the chemical industry.
Thank you, Mr. Chairman.
The Chairman. I thank you, Dr. Ikle. I think the
legislation you were talking about was H.R. 364, and that would
have just devastated the U.S. export controls.
Now we come to Doug Feith, former Deputy Assistant
Secretary of Defense for Negotiation Policy, and by George, I
am anxiously awaiting hearing from you. Thank you for coming
in.
STATEMENT OF DOUGLAS J. FEITH, FEITH AND ZELL, P.C., FORMER
DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR NEGOTIATION POLICY
Mr. Feith. Thank you very much, Mr. Chairman. I appreciate
the opportunity to appear before this committee again on this
important question. I agree with Dr. Ikle that the debate on
the Chemical Weapons Convention has been of remarkably high
quality for a matter so complex. I have a statement that I
would appreciate the committee admitting for the record, and
what I would like to do now is just touch on some of the points
in my written statement, if that is acceptable.
The Chairman. Very well. Without objection it will be so
ordered.
Mr. Feith. Thank you.
Both sides in this debate have established substantial
common ground. Both sides agree that the treaty is not
verifiable, if by verifiable we mean confidence in detection by
U.S. intelligence of illegal clandestine stockpiling or
production of chemical weapons. No one in the intelligence
community has ever said the treaty is verifiable by that
standard.
It is worthwhile to stress that the verification problem
here is not the lack of perfection. The problem is not that we
would detect cheating only 90 percent or 50 percent of the
time. The problem is that chemical weapons production is so
easy to do and to conceal that it is inherently impossible to
achieve any degree of confidence, let alone high confidence,
that we could detect it even regarding militarily significant
quantities of chemical weapons.
Someone once drove this point home by saying that the
Chemical Weapons Convention is like an effort to ban
Hollandaise sauce without banning eggs and butter. Treaty
critics believe that it would not serve the anti-chemical-
weapons cause for us to join a ban that we know will be
ineffective, impossible to monitor properly, and impossible to
enforce.
I speak as a lawyer devoted to the principle of law. The
world would surely be a better place if law in fact played a
greater role in securing international peace and civilized
behavior, but we do not move toward this goal by promulgating a
patently ineffective treaty. A chemical weapons ban that states
know they can sign cynically and violate without punishment
will not shore up the international norm against such weapons.
Creating bad law is not the way to build respect for law. The
CWC will cheapen the currency of international law.
The wiser approach, in my opinion, to chemical weapons arms
control is embodied in the bill S. 495, authored by Senator Kyl
and cosponsored by Senators Lott, Helms, and others. The United
States should work to obtain international agreement on
mechanisms for enforcing the existing treaty that bans
initiation of chemical warfare. We should put teeth in the 1925
Geneva Protocol.
If that treaty were properly enforced, there clearly would
not be any need for the CWC; and if the Geneva Protocol
continues to be violated with impunity, then there is no hope
that the CWC will be respected, for violations of the CWC are
far less discoverable and provable and far less likely to
horrify worldwide opinion than violations of the non-use ban.
What of the point that we might as well ratify the CWC as
we are destroying the U.S. chemical arsenal anyway? It is
better, in our view, to destroy our arsenal unilaterally than
to enter into a treaty that we know will not accomplish its
purpose. By acting unilaterally, we produce some of the key
benefits hoped for from the CWC without taking on the treaty's
undesirable baggage. Our action makes a strong moral statement
against chemical weapons, but it does not lend our name to the
dishonest proposition that Iran, China, or others have actually
abolished their chemical weapons arsenals.
Which brings us back to the question highlighted by Senator
Feinstein: Whether we are better off with the inspection and
information rights that the CWC will provide, or without. On
balance, we are better off without.
The CWC's verification regime stands on two legs. The first
is voluntary disclosure. Most of the regime is based on what
the parties voluntarily declare about their own holdings of
chemical weapons, manufacturing facilities and the like.
Virtually all the CWC's inspections will be at so-called
declared facilities, that is, locations that each party will
itself declare to be subject to inspection.
Nearly all the large budget of the new CWC organization
based in The Hague will be allocated to inspecting declared
facilities and processing the parties' voluntary declarations.
Does anyone expect a country like Iran or China or Russia to
declare a facility in which it is planning to produce or store
illegal chemical weapons? The declarations and the inspections
of declared facilities will yield our government little, if
anything, of value to augment what we already know from our own
national intelligence means.
Looking for chemical weapons at declared facilities brings
to mind the joke about the drunk who looks for his keys under
the street lamp rather than some ways off where he dropped
them, because there is more light under the lamp.
The verification regime's second leg is challenge
inspection. That is, inspection of a facility that was not
declared. This is often talked of as if it were a tool for
adding to our knowledge, or for finding violations. It is not.
One cannot spot check a country the size of Iran, much less
China, by means of challenge inspections.
The purpose of challenge inspections is to try to embarrass
a state that one has by other intelligence means caught in a
violation. So it is incorrect to think that we will learn much
of substantive value through challenge inspections.
Moreover, the CWC's challenge inspection provisions were
watered down in the negotiations to the point where they are
not even a useful tool for embarrassing cheaters. Parties will
easily be able, within the treaty's terms, to delay and
otherwise defeat the purposes of the challenge inspection
provisions.
The issue of whether the CWC will produce a net gain for
our intelligence capabilities must also be considered in light
of the harm that will result from participation in the
international inspection program by unreliable states, as
Ambassador Kirkpatrick and Mr. Perle highlighted, and as
Secretary Schlesinger highlighted yesterday.
I would simply emphasize that when rogue states learn how
to inspect, they learn how to conceal, and in this regard I
think it should disturb the Senate that the administration has
taken steps to begin training foreign CWC inspectors even
before the Senate has acted on this treaty. I understand that
some government agencies are resisting this effort, and I urge
this committee to inquire into this.
Now, Articles X and XI of the CWC have received a great
deal of attention lately, and these provisions are a major part
of the reason that the CWC will do more harm than good, as has
been explained very well.
I do want to reemphasize in response to the textual
analysis that Senator Biden mentioned that the argument that
Article X, paragraph 3, the most troubling provision, is
overridden by Article I, is, I believe, flatly contradicted by
what paragraph 6 says, that nothing in this convention shall be
interpreted as impeding the right of States' Parties to provide
assistance.
The people who drafted this provision anticipated precisely
the argument that Article I might override Article X, paragraph
3, and they took care of it by nailing it in paragraph 6. This
is a serious problem.
As for Article XI, it prohibits, or at least expresses
disapproval of export restrictions in the chemical field among
treaty parties.
Unlike the language of Article X, that of Article XI is not
completely unqualified, so the administration has been able to
offer an interpretation that renders this provision
meaningless, a legal nullity.
But whether or not the administration's interpretation is
valid, I would argue that it is beside the point--the real
issue is not--and I want to emphasize this point. The real
issue is not what the United States itself will export, but
what third countries will want to sell to the Irans of this
world.
For export controls to be effective they must have
multilateral support, which is hard to organize. If a German or
Chinese company arranges to sell an advanced chemical plant to
Iran, and the U.S. Government protests that this would enhance
Iran's chemical weapons program, we can expect the German or
Chinese Government to cite Article XI for the proposition that
the sale is not only permitted but required by the CWC; for
Iran will be a party in good standing, or in any event a party
against whom no violation can be proved.
Whatever one thinks of the CWC overall, no one can deny
that it would be a better or less bad treaty if the so-called,
``poisons for peace'' provisions were fixed.
Though I think the Senate should reject the CWC outright,
some treaty critics would be willing to withdraw their
opposition if only the Senate would ensure that Articles X and
XI are properly amended before U.S. ratification. Such critics
argue that to be minimally acceptable the CWC should at least
not undermine the very interests--stemming chemical weapons
proliferation--that it aims to promote.
Administration officials counter with the argument that it
would be embarrassing for the United States at this late stage
to insist that the treaty be amended. They say this would
destroy our diplomatic credibility.
While it would to some extent be embarrassing, it is also
embarrassing to ratify a treaty with provisions as perverse as
Articles X and XI. As for our diplomats' credibility, the
effect of forcing amendments of Article X and XI could be
powerfully positive.
If the administration's interpretations of those provisions
are widely held, then the amendment should not be unduly
difficult to arrange. If they are so difficult, this would
confirm that the provisions are a problem, and the United
States should not ratify until the problem is resolved.
If the administration, as is likely, then succeeds in
getting the needed amendments, the influence of our diplomats
would be enhanced. The next time a multilateral forum proposes
a treaty with a bizarre provision adverse to our interests, our
negotiators would be able to declare credibly that that
provision will preclude Senate approval of the treaty. This
will strengthen our hand.
A final point regarding deadlines. Many states of concern
to us--Syria, Libya, Iraq, and North Korea--have not signed the
CWC. Although some such states, specifically Russia, China,
Iran, and Cuba, have signed; none of these latter four has yet
ratified. The administration insists that it is crucial that
the United States ratify the CWC before April 29, but if we do
we will be the only state party that actually has a significant
chemical weapons capability.
April 29 is an artificial deadline. Any time the United
States might decide to become a party, it will, because of its
military and financial status, be afforded an appropriate
position of influence in the treaty organization if we assert
ourselves properly.
This is true because we are to pay 25 percent of the total
budget of the new organization. It is true also because the
other major states in this field are waiting for the United
States before they decide whether to ratify. If the Senate is
ready to act before April 29, then well and good, but the
Senate should not, in my opinion, hasten its deliberations
simply to make a meaningless deadline.
Thank you very much.
[The prepared statement of Mr. Feith follows:]
Prepared Statement of Douglas J. Feith
Chairman, I appreciate the opportunity to appear before you again
on this important question. It was in March 1996 that I last had the
honor to address this committee on why I think the Senate should not
consent to ratification of the Chemical Weapons Convention (CWC).
During the Reagan Administration, I served as Deputy Assistant
Secretary of Defense for Negotiations Policy and my responsibilities
included the chemical weapons treaty negotiations.
The debate on the CWC has been of remarkably high quality for a
matter so complex. The sides have engaged each other intelligently and
generally respectfully and have established substantial common ground.
They agree that chemical weapons are evil. Specifically, all four of us
on this panel--Fred Ikle, Jeane Kirkpatrick, Richard Perle and myself--
agree with the treaty's proponents that it would be desirable to
eliminate these weapons from the world entirely and that the United
States should continue to destroy its own chemical weapons, as we are
already doing, whether or not the United States joins the CWC. We all
favor the CWC's goal. We all agree that the chemical weapons threat in
the world is a problem the gravity of which the world should never
underestimate. In fact, a key reason for opposing the CWC is that it
will falsely advertise that the chemical weapons threat has been
mitigated when it has not.
The debate has also made clear that both CWC proponents and critics
acknowledge that the treaty has flaws. Both sides agree that the treaty
will not be global and will not cover a number of the states of
greatest concern to us.
Both sides also agree that the treaty is not verifiable, if by
``verifiable'' we mean confidence in detection by U.S. Intelligence of
illegal, clandestine stockpiling or pro-
duction of chemical weapons. No one in the intelligence community has
ever said the treaty is verifiable by that standard. It is worthwhile
to stress that the verification problem here is not the lack of
perfection. The problem is not that we would detect cheating only 90
percent or even only 50 percent of the time. The problem is that
chemical weapons production is so easy to do and to conceal that it is
inherently impossible to achieve any degree of confidence--let alone
``high confidence''--that we could detect it, even regarding militarily
significant quantities. Someone once drove this point home by saying
that the CWC is like an effort to ban hollandaise sauce without banning
eggs and butter.
In her testimony before this Committee yesterday, Secretary of
State Albright argued for the CWC by asserting that rogue states would
be subject to unprecedented verification measures and ``will probably
be caught'' if they violate the treaty. The Secretary of State was
incorrect in this assertion and there is no intelligence authority in
the government that would confirm her claim.
Both sides in the CWC debate agree that the treaty will not
actually eliminate chemical weapons from the world. And both sides
agree that the CWC is in essence a moral statement against chemical
weapons, a declaration that the civilized nations abhor these weapons
and think that no one should possess them.
The debate now has a rather precise focus: Given the importance of
the chemical weapons problem and given that the CWC has its flaws, is
the United States better served by ratifying the treaty or not. Treaty
proponents say that the United States is better off if the world enacts
this new international law against possession of chemical weapons, even
if we know that key countries will violate it. They also say that we
are better off with the inspection and information rights that the CWC
will provide than without. Treaty critics contend that the treaty will
not accomplish its purpose and will actually exacerbate the chemical
weapons problem in the world.
Treaty critics believe that it would not serve the anti-chemical-
weapons cause for us to join a ban that we know will be ineffective,
impossible to monitor properly and impossible to enforce. I speak as a
lawyer devoted to the principle of law. The world would surely be a
better place if law in fact played a greater role in securing
international peace and civilized behavior. But we do not move toward
this goal by promulgating a patently ineffective new treaty. A chemical
weapons ban that states know they can sign cynically and violate
without punishment will not shore up the international norm against
such weapons. On the contrary, it will damage that norm even more
severely than it was harmed by the world's failure to uphold the 1925
Geneva Protocol on Chemical Weapons when Iraq violated that venerable
treaty in the late 1980's.
Creating bad law is not the way to build respect for law. The ill-
conceived CWC will cheapen the currency of international law. The wiser
approach to chemical weapons arms control is embodied in the bill, S.
495, authored by Senator Kyl and cosponsored by Senators Lott, Nickles,
Mack, Coverdell, Helms, Shelby and Hutchison: The United States should
work to obtain international agreement on mechanisms for enforcing the
existing treaty that bans initiation of chemical warfare. In other
words, we should put teeth in the 1925 Geneva Protocol. If that treaty
were properly enforced, there would clearly be no need for the CWC. And
if the Geneva Protocol continues to be violated with impunity, then
there is no hope that the CWC will be respected, for violations of the
CWC are far less discoverable and provable and far less likely to
horrify world opinion than violations of the non-use ban. If one cannot
get the world excited about disfigured corpses produced by violations
of the Geneva Protocol, it is unrealistic to expect tough enforcement
action when U.S. officials allege clandestine storage somewhere of some
chemical bulk agent.
What of the point that we might as well ratify the CWC as we are
destroying the U.S. chemical arsenal anyway? It is better, in my view,
to destroy our arsenal unilaterally than to enter into a treaty that we
know will not accomplish its purpose. By acting unilaterally, we
produce some of the key benefits hoped for from the CWC without taking
on the treaty's undesirable baggage. Our action makes a strong moral
statement against chemical weapons. But it does not lend our name to
the dishonest proposition that Iran, China or others have actually
abolished their chemical weapons arsenals. The world can verify our
compliance with our self-imposed ban by reading the Congressional
Record. We then do not have to participate in a costly, wasteful,
intrusive but ineffective verification regime that is more likely to
spread militarily relevant chemical weapons technology than contain it.
Any other chemical weapons state that wants to follow our lead can
do so, also unilaterally. Each will have the opportunity to persuade
the world as best it can that it is doing what it has promised. This
way, states will not obtain a clean bill of health simply by signing a
treaty and subjecting themselves to an inspection regime that they know
is easy to defeat.
Which brings us back to the question of whether we are better off
with the inspection and information rights that the CWC will provide or
without. On balance, we are better off without. Treaty proponents
stress that the CWC's verification provisions are unprecedented in
their elaborateness and intrusiveness, which is true. But they will
contribute little of any importance to what we need to know about the
chemical weapons threat in the world.
The CWC's verification regime stands on two legs. The first is
voluntary disclosure. Most of the regime is based on what the parties
voluntarily declare about their own holdings of chemical weapons,
manufacturing facilities, chemical stocks and the like. Virtually all
the inspections to be conducted under the CWC will be of so-called
``declared facilities''--that is, locations that each party will itself
declare to be subject to inspection. Routine inspections will focus
exclusively on ``declared facilities.'' Nearly all the large budget of
the new CWC organization based in the Hague will be allocated to
inspecting ``declared facilities'' and processing the parties'
voluntary declarations. Does anyone expect a country like Iran or China
or Russia to declare a facility at which it is planning to produce or
store illegal chemical weapons? The declarations and the inspections of
``declared facilities'' will yield our government little if anything of
value to augment what we already know from our own national means of
intelligence. Looking for chemical weapons at ``declared facilities''
brings to mind the joke about the drunk who looks for his keys under
the street lamp rather than some ways off, where he dropped them,
because there is more light under the lamp.
The CWC verification regime's second leg is challenge inspection--
that is, inspection of a facility that was not ``declared.'' This is
often talked of as if it were a tool for adding to our knowledge or for
finding violations. It is not. One cannot spot check a country the size
of Iran, much less China, by means of challenge inspections. The
purpose of challenge inspections is to try to embarrass a state that
one has, by other intelligence means, caught in a violation. So it is
incorrect to think that we will learn much of substantive value through
challenge inspections. Moreover, the CWC's challenge inspection
provisions were watered down in the negotiations to the point where
they are not even a useful tool for embarrassing cheaters. Parties will
easily be able, within the treaty's terms, to delay and otherwise
defeat the purposes of the challenge inspection provisions.
The issue of whether the CWC will produce a net gain for our
intelligence capabilities must be considered also in light of the harm
that will result from participation in the international inspection
program by unreliable states. As Secretary Schlesinger noted before
this committee yesterday, Iraq in the 1970's and 1980's learned a great
deal about how to conceal its nuclear weapons program through
participating in the inspection regime of the Nuclear Non-Proliferation
Treaty. When rogue states learn how to inspect, they learn how to
conceal. In this regard, I think it should disturb the Senate that the
Administration has taken steps to begin training CWC inspectors even
before the Senate has acted on the treaty. I understand that some
government agencies are resisting this effort. I urge this committee to
inquire into this.
Articles X and XI of the CWC have received a great deal of
attention, including at this committee's hearing yesterday with the
three former Secretaries of Defense--Rumsfeld, Schlesinger and
Weinberger--who opposed ratification. These provisions are a major part
of the reason that the CWC will do more harm than good. These
provisions will promote the spread of chemical defense and other
technology that will make it easier for states to develop a chemical
war fighting capability than if the CWC did not exist.
Article X obliges the parties to facilitate the exchange with the
other parties of chemical weapons defense material and technology. To
have an effective chemical war fighting capability, one must have
defense material and technology to protect one's own forces. Article X
will establish the right of Iran, for example, to obtain such items
from Germany, France, China or some other state. And it will establish
the right of the would-be sellers to provide such items to Iran. The
language of Article X is straightforward. Paragraph 3 says:
Each State Party undertakes to facilitate, and shall have the
right to participate in, the fullest possible exchange of
equipment, material and scientific and technological
information concerning means of protection against chemical
weapons.
And Paragraph 6 says:
Nothing in this Convention shall be interpreted as impeding the
right of States Parties to * * * provide assistance * * *
[where ``assistance'' is defined as ``delivery * * * of
protection against chemical weapons, including * * * detection
equipment and alarm systems; protective equipment * * *;
decontamination equipment * * *; medical antidotes * * *; and
advice on any of these protective measures].
As Richard Perle has pointed out, the CWC prohibits that part of a
chemical weapons capability that is easy for states to make for
themselves: the weapons themselves. The other part of that capability--
defense material and technology, which is relatively ``high tech'' and
difficult to acquire--is precisely what the treaty affirmatively
requires the parties to proliferate.
Similarly, Article XI prohibits--or at least expresses disapproval
of--export restrictions in the chemical field among treaty parties.
Unlike the language of Article X, that of Article XI is not completely
unqualified, so the Administration has been able to offer an
``interpretation'' that renders this provision meaningless, a legal
nullity. This allows Administration officials to assert that the United
States will maintain export controls on Iran and others notwithstanding
Article XI. Whether or not the Administration's interpretation is
valid, it is beside the point.
The real issue is not what the United States itself will export,
but what third countries will want to sell to the Irans of this world.
For export controls to be effective, they must have multilateral
support which is hard to organize. To return to the example above: If a
German or Chinese company will arrange to sell an advanced chemical
plant to Iran and the U.S. government protests that this would enhance
Iran's chemical weapons program, we can expect the German or Chinese
government to cite Article XI for the proposition that the sale is not
only permitted but required by the CWC, for Iran will be a treaty party
in good standing (or, in any event, a party against whom no violation
can be proved). There is precedent for such a colloquy. The Clinton
Administration protested against a Russian sale of a nuclear reactor to
Iran. The Russians replied by citing the provisions in the Nuclear Non-
Proliferation Treaty--the ``atoms for peace'' section--on which CWC
Articles X and XI are modeled. This is why Fred Ikle has referred to
Articles X and XI as ``poisons for peace.''
Whatever one thinks of the CWC overall, no one can deny that it
would be a better (or less bad) treaty if the ``poisons for peace''
provisions were fixed. Though I think the Senate should reject the CWC
outright, some treaty critics would be willing to withdraw their
opposition if only the Senate would ensure that Articles X and XI are
properly amended before U.S. ratification. Such critics argue that, to
be minimally acceptable, the CWC should at least not undermine the very
interest--stemming chemical weapons proliferation--it aims to promote.
Administration officials counter with the argument that it would be
embarrassing for the United States, at this late stage, to insist that
the treaty be amended. They say this would destroy our diplomatic
credibility. While it would, to some extent, be embarrassing, it is
also embarrassing to ratify a treaty with provisions as perverse as
Articles X and XI. Also, the Clinton Administration could take comfort
from the fac