ESRC Research Seminar Series: New Approaches to WMD Proliferation SPRU, Freeman Centre, Sussex, 8-9 January 2007 Parallel Enforcement Initiatives for Chemical Weapons Non- Proliferation: OPCW, PSI, 1540 Lisa Tabassi, Legal Officer OPCW Technical Secretariat [email protected] ORGANISATION FOR THE PROHIBITION OF CHEMICAL WEAPONS 1 1993 Chemical Weapons Convention Strengths: • ABSOLUTE BAN -- NO RESERVATIONS – Reservations OK to the annexes, if consistent • Created the OPCW and established a verification regime to ensure compliance (declarations + inspections) • 181 States Parties in January 2007 2 The OPCW is not an enforcement agency 3 The role of national law enforcement agencies and courts Article VII(1) … adopt the necessary measures to implement (a) … including enacting penal legislation (b) Not permit in any place under its control any activity prohibited to a State Party under this Convention.... = requires the State Party to enforce the CWC in its jurisdiction = national implementing legislation is needed to secure compliance 5 Goal: No Safe Havens 6 181 States Parties; 14 States not party: • AFRICA: Angola, Congo, Guinea-Bissau, Somalia • ASIA: North Korea, Myanmar • LATIN AMERICA and the CARIBBEAN: Bahamas, Barbados, Dominican Republic • MIDDLE EAST: Egypt, Iraq, Israel, Lebanon, Syria 7 What is a chemical weapon? ? 8 Article II definitions = General Purpose Criterion • Chemical weapon • Toxic chemical • Precursor • Purposes not prohibited 9 General Obligations: prohibitions, “measures” and enforcement 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. 11 Article VI(2) measures (2) Each State Party shall adopt the necessary measures to ensure that toxic chemicals and their precursors are only … developed, produced, otherwise acquired, retained, transferred or used within its territory or in any other place under its jurisdiction or control for purposes not prohibited 12 Specific obligations: create a National Authority, criminal offences, import/export controls Basic elements of CWC legislation • establish a “National Authority” to coordinate national implementation of the Convention • create offences for the prohibitions • restrict production in Schedule 1 chemicals • establish export/import controls for Schedules 1, 2 and 3 chemicals • make reporting of declarable activities mandatory • penalise violations • establish any necessary measures to enforce the above Import/export controls for scheduled chemicals • SCHEDULE 1 - NO transfers to or from anyone in a State not party; transfers to States Parties only for specific purposes; NO retransfers • SCHEDULE 2 - NO transfers to or from anyone in a State not party • SCHEDULE 3 - NO transfers to anyone in a State not party without first obtaining an end-use certificate from the “competent government authority” • REQUIRE EXPORTERS/IMPORTERS TO REPORT DATA NEEDED FOR ANNUAL DECLARATIONS to OPCW on transfers of Schedules 1, 2 & 3 chemicals for the past year 15 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 National Legislation • Enables the State Party to declare regulated activities. • Enables the State Party to receive and/or practice inspections. • Enables the State Party to control and report on import and export of regulated chemicals • Enables the State Party to cooperate in the implementation of the CWC 17 Reporting obligations Reporting obligations: Verification Annex, Parts VI-VIII • Notification of Schedule 1 transfers • Annual declaration of anticipated activities – production of Schedules 1 and 3 chemicals – production, processing, consumption of Schedule 2 • Annual declarations on previous year activities – Details on Schedule 1 chemical transfers – Imports and exports of Schedules 2 and 3 chemicals (aggregate national data) – production of Schedules 1 and 3 chemicals – production, processing, consumption of Schedule 2 – update the list of other chemical production facilities • submit information on the national protective programme 19 Make reporting to the National Authority a 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 Key to smooth inspections: legislation Legislation to cover OPCW inspections • ACCESS to the facilities or plants inspectable under the Convention is an essential requirement. 22 National inspections • Allows the National Authority to verify the information necessary for declarations or to follow-up OPCW requests for clarification of declarations 23 Confidentiality protection • confidentiality of information reported to the National Authority for declarations or received in the course of inspections • confidentiality of information received from the OPCW 24 MAKING IT WORK 25 Primary legislation Primary legislation typically covers: • Definitions • Composition, mandate, and powers of National Authority • Prohibitions • Penalties for violations • Extraterritorial application to nationals • Requirement to submit data relevant for declarations • Requirement to cooperate with inspections • Requirement to protect confidential information 26 Subsidiary regulations Regulations typically cover: • Licensing of production facilities • Import/export controls • Procedures and forms for submitting declarations related data • Thresholds • Exceptions • Deadlines • Procedures for inspections 27 Purpose of regulations: Enable: • The National Authority to collect all the information it needs to compile and submit to the OPCW accurate and timely declarations as required by the Convention • Prevention or detection of illegal trade or transfers prohibited by the Convention • Enforce decisions of the OPCW Conference of the States Parties relevant to national implementation • OPCW inspections to be conducted in accordance with the Convention 28 Import/export controls: POLICY CONSIDERATIONS • Who examines the End-Use Certificates and do they do follow-up? • Establish import-export licensing system? • Issue open general licenses? • Establish import-export permit system? • Single use or multiple use? • Monitor in-country movement of imports of S1? • How to monitor S1 maximum national holding of 1 tonne? • Prohibit all imports and exports of scheduled chemicals except with permission of the Minister? 29 The role of Customs Collaboration between Customs and the National Authority • National Authority does all data collection based on permits issued and reports from permit holders? • Customs uses CAS numbers or HS codes to compile data on ACTUAL imports and ACTUAL exports and provides data to the National Authority? 31 Specific obligations: identifying scheduled chemicals Identification of scheduled chemicals • Integration of CWC schedules into the national list of controlled goods • CWC schedules identify chemicals by CAS (Chemical Abstracts Services) number • WCO recommendation on HS codes (Harmonised System): add national digits for scheduled chemicals •Yet to be discussed: uniform identification to reduce discrepancies in declarations to the OPCW 33 TRAINING: Cooperation with the OPCW and States Parties 34 Implementation support by the OPCW or States Parties Support to Support to Support to establish/improve/ draft primary draft train Licensing Legislation regulations Authorities/ (National and Officers in the Law) procedures enforcement of laws and regulations Support for outreach/ Support/train Support / awareness ing training raising to for the for Customs Possible industry and Judicial Officers areas of others Sector Co- operation 35 3 2003 Rev Con & the Action Plan • Required all States Parties to establish a National Authority and adopt legislation (measures) by November 2005 • Follow up to the Action Plan adopted November 2005 • Sustaining follow-up to the Action Plan adopted December 2006 • Proactive assistance by States Parties and the Technical Secretariat • Significant voluntary contributions – SPs & EU 36 Results? 2005 2006 National 84% 95% Authority Some legislation 60% 62% Comprehensive 34% 40% legislation Drafting 92 109 legislation 37 Proliferation Security Initiative (PSI) Post 11 September: multilateral, regional, plurilateral and unilateral initiatives • UN resolutions • IMO and ILO Convention amendments • ICAO • WCO integrated supply chain management • EU Strategy against WMD proliferation • NATO, OAS, ASEAN • Australia Group • G-8 Global Partnership • PSI • National laws 39 PSI • Announced by US in 2003 • Initially 11 participating States - now 15 + 60 cooperating ad hoc • Statement of Interdiction Principles: “undertake effective measures, either alone or in concert with other States, for interdicting the transfer or transport of WMD from