ORGANISATION FOR THE PROHIBITION OF CHEMICAL WEAPONS

1. UNICR-OPCWSeminarMultilateral 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 AdviserOPCW Technical Secretariatlegal@opcw.org 18 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

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

7. 2004 UN Security Council res. 1540 Chapter VII resolution adopted on 28 April 2004. All UN members are required to: • adopt lawscriminalising the proliferation ofweapons 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 RegulationsWho 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:

31. International cooperation “Cooperation and legal assistance”Article VII(2) of the Convention provides: Each State Party shall cooperate with other StatesParties 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.

36. Thank you! OPCW Office of the Legal AdviserTel.: +31-70 416 3708 legal@opcw.orgwww.opcw.org