OPCW Conference of the States Parties Eighth Session C-8/DG.5 20 – 24 October 2003 18 September 2003 Original: ENGLISH NOTE BY THE DIRECTOR-GENERAL REPORT ON NATIONAL IMPLEMENTATION MEASURES 1. Introduction The First Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Convention (First Review Conference) called upon States Parties to submit information in several categories on national implementation measures—information that is to be reported to the Conference of the States Parties (hereinafter “the Conference”) at its Eighth Session (paragraph 7.83 of RC-1/5, dated 9 May 2003). 2. Overview of information compiled The Technical Secretariat (hereinafter “the Secretariat”) has compiled and analysed the following information for consideration by the Conference at its Eighth Session. The information is contained in the two Annexes to this Note: (a) Annex 1, ”Status of Submissions Related to National Implementation Measures As at 11 September 2003”, indicates which States Parties have done the following: (i) notified the OPCW of the establishment of their National Authorities pursuant to Article VII, paragraph 4, of the Chemical Weapons Convention (hereinafter “the Convention”); (ii) pursuant to Article VII, paragraph 5, of the Convention, submitted information on the legislative and administrative measures they have taken to implement the Convention; (iii) responded to the first legislation questionnaire (annexed to S/194/2000, dated 8 June 2000); (iv) responded to the second legislation questionnaire (annexed to S/308/2002, dated 6 June 2002, and S/317/2002, dated 18 September 2002); CS-2003-3550(E) distributed 19/09/2003 *CS-2003-3550.E* C-8/DG.5 page 2 (v) covered all key areas of enforcement of the Convention in their national implementing legislation; (vi) provided the OPCW with the full text of their national implementing legislation, as requested by the First Review Conference in subparagraph 7.83(c) of its Report (RC-1/5); (vii) with reference to subparagraph 7.83(g) of that Report, indicated in their responses to the first legislation questionnaire that they have reviewed their existing national regulations in the field of trade in chemicals pursuant to Article XI, subparagraph 2(e), of the Convention; (viii) nominated one or more individuals to the OPCW Network of Legal Experts, whose members will provide or receive assistance in drafting national implementing legislation (see S/363/2003, dated 28 May 2003); and (ix) in response to paragraph 7.83 of the Report of the First Review Conference, informed the OPCW of the status of their adoption of the legislative and administrative measures necessary for or taken by them to implement the Convention, of any problems they have encountered, and of any assistance they require; and (b) Annex 2, “Survey of the Contents of Submissions under Article VII, Paragraph 5, of the Convention As at 11 September 2003”, which presents an updated survey of the scope of national implementing legislation, as reported by States Parties in their responses to the second legislation questionnaire, on penal enforcement of the Convention, or as derived from a reading of the legislation they have submitted. 3. Statistical analysis A review of the information in the Annexes to this Report shows that, as at 11 September 2003: (a) of the 153 States Parties, 123 (80%) had notified the OPCW that they have designated or established their National Authorities pursuant to Article VII, paragraph 4, of the Convention; (b) ninety-three States Parties (61%) had made submissions under Article VII, paragraph 5. Sixty-three (41%) had submitted, either in the original language or in translation, the full text of their legislation or of the measures they have taken to implement the Convention. However, only 51 (33%) had reported that their national implementing legislation covers all key areas of enforcement, namely the following: (i) Article I prohibitions, and penalties for violating them; C-8/DG.5 page 3 (ii) extraterritorial application of the legislation to natural persons holding the nationality of the State Party; (iii) the comprehensiveness of the definition of “chemical weapons” in Article II, subparagraph 1(a), which states that the term means “Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes”; (iv) penalties for violations of Parts VI, VII, and VIII of the Verification Annex to the Chemical Weapons Convention; (v) enforcement of the end-user certificate requirement for transfers of Schedule 3 chemicals to States not Party, in accordance with paragraph 26 of Part VIII of the Verification Annex; and (vi) penalties for the failure to report declarable activities; (d) seventy-six States Parties (50%) had responded to the first legislation questionnaire (annexed to S/194/2000), on the regulation of scheduled chemicals, and 100 (65%) to the second (annexed to S/308/2002 and S/317/2002), on penal enforcement of the Convention; (e) as regards the regulation of scheduled chemicals, 71 States Parties (46%) had reported penalising violations of the obligations concerning Schedule 1 chemicals, while 71 (46%) and 70 (46%) had reported the same with regard to Schedule 2 and 3 chemicals, respectively. Only 72 States Parties (47%) are enforcing the end-user certificate requirement for transfers of Schedule 3 chemicals to States not Party - 37 by law, the other 35 as a matter of policy only (for example, through enforcement by the National Authority in its discretion when it is issuing a permit); (f) thirty-nine States Parties (25%) had, in accordance with subparagraph 2(e) of Article XI of the Convention, reviewed their existing national regulations in the field of trade in chemicals in order to render them consistent with the object and purpose of the Convention; (g) twenty-seven States Parties (18%) had reported that they are drafting national implementing legislation, while 21 (14%) had requested assistance in drafting legislation and/or in training the staff of their National Authorities in the requirements of the Convention, and 21 (14%) had submitted draft legislation to the Secretariat for comment; and (h) forty-six States Parties (30%) had nominated one or more individuals to the OPCW Network of Legal Experts. C-8/DG.5 page 4 4. Legal technical assistance 4.1 The list of individuals that States Parties have nominated to the OPCW Network of Legal Experts will be prepared in September 2003. The Network includes both those who will be providing advice on national implementing legislation and those who will be receiving it. An orientation meeting and drafting workshop will be held in The Hague from 3 to 7 November 2003. 4.2 One member of the Network of Legal Experts of Latin America and the Caribbean (a forerunner of the OPCW Network of Legal Experts) has responded to three requests for assistance with legislation. Those cases aside, the Secretariat has no official reports from any State Party that it is currently providing bilateral legal technical assistance to other States Parties. 5. Rate of submissions under Article VII, paragraph 5, and the scope of legislation The following table gives an overview of the rate of submissions under Article VII, paragraph 5, of the Convention between entry into force and the reporting cut-off date, as well as the reported scope of the legislation. Status reported as at: No. of States No. (and Legislation covers areas key Parties percentage) of to enforcement of the CWC States Parties that had made Article VII(5) submissions C-I: May 1997 87 0 (0%) Not available C-II: December 1997 103 24 (23%) Not available C-III: November 1998 120 40 (33%) Not available C-IV: July 1999 125 43 (34%) Not available C-V: May 2000 133 48 (36%) Not available C-VI: May 2001 143 53 (38%) Not available C-7: October 2002 145 70 (48%) 39 (27%) 11 September 2003 153 91 (61%) 51 (33%) 6. Status of legislation: rate of response by States Parties Paragraph 7.83 of the Report of the First Review Conference (RC-1/5) called upon States Parties “that have not already done so to inform the OPCW by the next regular session of the Conference of the status of their adoption of the legislative and administrative measures necessary for or taken by them to implement the Convention, of any problems they have encountered, and of any assistance they require.” The Report was adopted on 9 May 2003 and issued on 13 June 2003. On 1 July 2003, the Secretariat prepared and mailed 97 notes verbales to the States Parties concerned, seeking the information requested by the First Review Conference and offering any assistance that might be required. Throughout July and August 2003, the Secretariat followed up with reminders by fax, e-mail, and telephone, and met with 67 delegations to assist with their responses. Nevertheless, by the reporting cut-off date only 33 responses had been received to the 97 requests the Secretariat sent - a response rate of just 34%. These responses have been included in Annex 1, together with any relevant information that could be drawn from earlier communications. C-8/DG.5 page 5 Annexes (English only): Annex 1: Status of Submissions Related to National Implementation Measures As at 11 September 2003 Annex 2: Survey of the Contents of Submissions under Article VII, paragraph 5, of the Convention As at 11 September 2003 p Annex 1 C-8/DG.5 age 6 Annex 1 STATUS OF SUBMISSIONS RELATED TO NATIONAL IMPLEMENTATION MEASURES AS AT 11 SEPTEMBER 20031 State Party NA Article Response Response Legislation Text of Article Nomination- Contents of communication received from the Nature of any estab- VII(5) to LQ1 LQ2 covers all measures XI(2e) to the State Party, reporting the status of its efforts to request for lished2 submis- received received areas key to has been review Network of establish an NA and/or enact national assistance, sion enforcement4 provided5 carried Legal implementing legislation and any received3 out6 Experts7 response from the TS 1.