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
[email protected]
18 March 2009
ORGANISATION FOR THE PROHIBITION OF CHEMICAL WEAPONS
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General obligations:
prohibitions, measures
and enforcement
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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.
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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
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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
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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
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 (incountry transfer)
• Each State Party shall subject
import/export of scheduled chemicals to
control
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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
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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
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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
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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
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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
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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)
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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
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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
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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
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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
...
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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
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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?
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Transfer Regulations
• Some States Parties adopt CWC-specific
regulations
• Others amend existing regulations (inter
alia, import/export regulations)
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Transfer Regulations
Who is the licensing authority?
OPTIONS:
1. National Authority: consults with other
relevant ministries before issuing the license
2. 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)
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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
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Combine control regimes?
Integrated legislation?
• Environmental regimes?
– Rotterdam Convention
– Stockholm Convention
• Weapons control regimes?
– Dual-use import/export controls
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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
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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?
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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
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PRACTICAL aspects:
International cooperation
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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
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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
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Conclusion
Effective implementation
means proper enforcement
• Capacity building – identifying controlled
chemicals, risk assessment, laboratory,
detection
• Equipment – communications & software
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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.
Thank you!
OPCW Office of the Legal Adviser
Tel.: +31-70 416 3708
[email protected]
www.opcw.org
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