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 legal@opcw.org 18 March 2009 ORGANISATION FOR THE PROHIBITION OF CHEMICAL WEAPONS

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.

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

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.

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.

2004 UN Security Council res. 1540 Chapter VII resolution adopted on 28 April 2004. 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.

Specific obligations: import/export controls

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

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

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

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

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

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

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

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)

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

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

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

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 ...

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

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?

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

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)

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

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

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

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?

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

International cooperation PRACTICAL aspects: International cooperation

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

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

Conclusion

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

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.

Thank you! OPCW Office of the Legal Adviser Tel.: +31-70 416 3708 legal@opcw.org www.opcw.org