1. UNICR-OPCW Seminar Multilateral Approaches to Non-proliferation
Legal Framework for CWC Transfer Controls and Enforcement:
Import-Export Provisions and Cooperation between the National Authority and Customs
Santiago Oñate, Legal Adviser OPCW Technical Secretariat March 2009
ORGANISATION FOR THE PROHIBITION OF CHEMICAL WEAPONS

2. General obligations: prohibitions, measures and enforcement

3. Article I, prohibitions
1. Each State Party to this Convention undertakes never under any circumstances:
(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;
(b) To use chemical weapons;
(c) To engage in any military preparations to use chemical weapons;
(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention. ...
5. To use riot control agents as a method of warfare.

4. Article VII(1)(a) legislative implementation
Prohibit natural and legal persons undertaking any activity prohibited to a State Party under this Convention
= requires the State Party to put legislation implementing the CWC in place

5. Article VII(1)(b) enforcement / implementation
Not permit in any place under its control any activity prohibited to a State Party under this Convention....
= requires the State Party to enforce its implementing legislation and the CWC in its jurisdiction
Each State Party is required to extend its penal legislation to all natural persons possessing its nationality.
The negotiators of the Convention included this provision to ensure that there would be no safe havens for violators of the Convention. If your national is committing chemical weapons offences abroad, under your laws you must be in a position to arrest the person if he/she returns home or to request extradition of the person.

6. Limits of regulatory control: Article XI(1) = balance
The provisions of this Convention shall be implemented in a manner which avoids hampering the economic [...] development of States Parties [and] the international exchange of ... chemicals [...] for purposes not prohibited” under the CWC
The extent of regulatory control that States Parties decide to establish to meet their obligations under the CWC is tempered by an equal obligation under Article XI which requires that the provisions of the Convention “shall be implemented in a manner which avoids hampering the economic development of States Parties and the international exchange of chemicals for purposes not prohibited” under the Convention.
Article XI also requires States Parties to review their existing national regulations in the field of trade in chemicals to ensure that they are consistent with the object and purpose of the Convention.

7. 2004 UN Security Council res. 1540
Chapter VII resolution adopted on 28 April All UN members are required to:
adopt laws criminalising the proliferation of weapons of mass destruction (nuclear, chemical and biological);
adopt laws preventing non-state actors from manufacturing, acquiring or trafficking in nuclear, biological or chemical weapons, the materials to make them, and the delivery systems;
develop border controls and law enforcement to detect, deter, prevent and combat the illicit trafficking and brokering in such items.

8. Specific obligations: import/export controls

9. Article VI(2)-(5) Undertakings with regard to transfers
Each State Party shall adopt measures necessary to ensure that toxic chemicals and their precursors are only transferred within the country for purposes not prohibited (in-country transfer)
Each State Party shall subject import/export of scheduled chemicals to control

10. Import/export controls Schedule 1 chemicals
NO transfers to or from anyone in a State not party;
NO retransfers ;
Declaration regime for export/import of Schedule 1 chemicals to States Parties
Control of transfers to States Parties: only for specific purposes and within the overall amount

11. Import/export controls Schedule 2 chemicals
NO transfers to or from anyone in a State not party
Declaration regime for export/import of Schedule 2 chemicals to States Parties

12. Import/export controls Schedule 3 chemicals
NO transfers to anyone in a State not party without first obtaining an end-use certificate from the “competent government authority”
Declaration regime for export/import of Schedule 3 chemicals

13. Free Ports and Free Zones
Obligation under CWC: control of transfers of toxic chemicals and their precursors within territory or any other place under jurisdiction
Obligation to control in Free Ports and Free Zones
In line with purpose of such Free Ports and Free Zones
= free of tax
≠ free of control

14. Measures to control import/export, I
Import/export prohibitions (in particular with regard to States not Party)
establish import/export controls for Schedules 1, 2 and 3 chemicals
Licensing-and-reporting regime for import of Schedule 1 chemicals
Reporting / Licensing-and-reporting regime for export of Schedule 1 chemicals and import and export of Schedule 2 and 3 chemicals (policy decision relevant for regulations)
Licensing-and-reporting regime for export of Schedule 3 chemicals to States not Party

15. Measures to control import/export, II
Establish any necessary measures to enforce the prohibitions and control regimes
Create offences for the prohibitions and penalise violations
“National Authority” as possible coordinator

16. Annual reporting obligations: Verification Annex, Parts VI-VIII
declaration on previous year activities
Details on Schedule 1 chemical transfers
Imports and exports of Schedules 2 and 3 chemicals (aggregate national data)

17. Reporting to the NA: legal obligation
Use legislation to identify declarable activities:
require reporting to the National Authority and empower the National Authority to seek additional information when necessary
penalise failure to report, false declarations and failure to keep records
penalties should be effective, proportionate and dissuasive

18. Law and Regulations, I Primary legislation typically covers:
Definitions
Basic rights and obligations of natural and legal persons
Policy decisions on regimes to enforce the CWC and primary legislation
Legal bases for regulations (specificity according to State Party’s legal system)
Prohibitions and penalties for violations
Extraterritorial application to nationals

19. Law and Regulations, II
Regulations elaborate and concretise the primary legislation:
Procedures for compliance with obligations of natural and legal persons
Application for license:
Type of data to be provided
Who to apply to
Thresholds
Timelines
Forms (e.g. end-user certificate)
Rules for reporting to customs authority or licensing authority

20. Law and Regulations, III
Rules for relevant authorities
Processing of licenses and declarations/reported data
Division of competence and order of cooperation among authorities
Rules for inspections by customs authorities
...

21. Law and Regulations, IV
...
Exemptions and exceptions (e.g. for transfer)
Schedules of chemicals referred to by primary legislation (national list of controlled goods)
National digits for the WCO Harmonised System of Classification

22. Import/export controls for scheduled chemicals - Policy
Some more specific policy decisions can be adopted in the regulations (depending on legal basis in legislation)
Issue open general licenses? (possible for S2 and S3)
Single use or multiple use licenses?

23. Transfer Regulations
Some States Parties adopt CWC-specific regulations
Others amend existing regulations (inter alia, import/export regulations)

24. Transfer Regulations Who is the licensing authority?
OPTIONS:
1. National Authority: consults with other relevant ministries before issuing the license
Other licensing authority: consults with other relevant ministries and the National Authority before issuing the license
A consultative process
Licensing authority will need a database (past import/exports, aggregate amount of S1 chemicals)

25. Transfer Regulations Obligations of the importer/exporter
Maintain special records of all imports and exports of scheduled chemicals
Carry out the activities in accordance with the requirements and conditions set in the license
Inform the National Authority in writing about changes in the imports/exports (quantities, shipment date)
License is not transferable

26. Combine control regimes?
Integrated legislation?
Environmental regimes?
Rotterdam Convention
Stockholm Convention
Weapons control regimes?
Dual-use import/export controls

27. Collaboration between Customs and the National Authority
Customs uses CAS numbers or HS codes to compile data on ACTUAL imports and ACTUAL exports and provides data to the National Authority
Customs checks whether necessary license has been granted, prevents unauthorised activities, keeps records and reports to the National Authority
National Authority does all data collection based on licenses issued and reports from permit holders and customs

28. Making an investigation
After an alleged violation, Customs can provide information that will help to determine:
What items were shipped?
Were the items licensable?
Was a license obtained?

29. Customs Enforcement procedures
Importer/exporter must submit license or permit for customs clearance
Temporary prohibition in case of reasonable doubt by Customs & consultation with National Authority
Cooperation with investigations

30. International cooperation
PRACTICAL aspects:
International cooperation

31. International cooperation
“Cooperation and legal assistance” Article VII(2) of the Convention provides: Each State Party shall cooperate with other States Parties
Aims of cooperation regarding transfers: Prevention, investigation and prosecution
Methods:
Bilateral cooperation with States Parties through established channels
Cooperation between National Authorities and CWC enforcement agencies

32. Possible support with primary legislation and regulations
The Office of the Legal Adviser’s Office can render assistance to ...
drafting primary legislation
drafting secondary legislation

33. Conclusion

34. Effective implementation means proper enforcement
Capacity building – identifying controlled chemicals, risk assessment, laboratory, detection
Equipment – communications & software

35. Enhancing national security
It is in every State Party’s own interest to comply with the CWC, in this case to control import and export of chemicals.
The described legislation will act as a deterrent for any terrorist who would wish to engage in chemical terrorism.
The legislation ensures that chemicals will only be used for peaceful purposes.
Looking at those cases, the point that becomes clear is that putting the network of laws and enforcement mechanisms in place to implement the Convention means that the State’s national security will be enhanced. The humanitarian aspects of the treaty are important – the goals are inspirational – but the bottom line is that each State Party benefits from being part of this treaty – both in its national implementation and in joining the majority of like-,minded States.

36. Thank you! OPCW Office of the Legal Adviser Tel.: +31-70 416 3708