SIPRI-Saskatchewan-Frankfurt Group

Effective Implementation
of the
Chemical Weapons Convention

Proceedings of a Conference
held at
Bad Homburg, Germany, 8 - 10 September 1995

Eds.: Thomas Kurzidem, York von Lersner, Patricia Radler,

Thomas Stock, Ronald G. Sutherland
2 Effective Implementation of the CWC

Effective Implementation of the Chemical Weapons Convention

Proceedings of a Conference held at Bad Homburg, Germany, 8 - 10 September 1995
Frankfurt am Main, December 1995
Editors: SIPRI-Saskatchewan-Frankfurt Group
Editorial office: c/o Prof. Dr. M. Bothe / Thomas Kurzidem
Institute for Public Law
Johann Wolfgang Goethe-University
Senckenberganlage 31
D-60054 Frankfurt am Main
Phone: ++ 49 - 69 - 7982 - 2779
Fax: ++ 49 - 69 - 7982 - 8446
e-mail: Kurzidem@[Link]
Layout: Nikolaos Lavranos
Print: Top Kopie GmbH, Frankfurt am Main

All rights reserved

 Conference Proceedings, Bad Homburg 8 - 10 September 1995 3

SIPRI-Saskatchewan-Frankfurt Group

Effective Implementation
of the
Chemical Weapons Convention

Proceedings of a Conference
held at
Bad Homburg, Germany, 8 - 10 September 1995

Eds.: Thomas Kurzidem, York von Lersner, Patricia Radler,

Thomas Stock, Ronald G. Sutherland
4 Effective Implementation of the CWC
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 5

Table of Contents
Page

Preface 9

Introduction 10

A. Conference Presentations
Opening Session and First Session

Welcoming Address by Ian R. Kenyon 13

The Conference on the Effective Implementation of the Chemical Weapons

Convention: Goals and Results 17
Michael Bothe

Country Reports on the implementation of the CWC and the establishment

of the National Authority 24

Second Session: The implementation process in Germany

The need for early ratification of the Chemical Weapons Convention - A view
from the German Foreign Office 33
Peter von Butler

Implementation Tasks of the German Foreign Office as the Future National Authority 35
Christoph Bundscherer

National Implementation of the Chemical Weapons Convention 39

Manfred Ruck

The role and function of the Verification Centre of the Federal Armed Forces 44
as Part of the National Authority
Jürgen Mihm

Effective Implementation of the Chemical Weapons Convention (CWC) in Germany 49

and the Involvement of the German Chemical Industry Association
Detlef Männig

Chemical Weapons Convention - Preparatory measures taken by Hoechst AG 51

Hans Kohl

The Chemical Weapons Convention from the view of chemical trade 53

Peter Steinbach

Summary of Discussion 55
6 Effective Implementation of the CWC

Third Session: Declaration Requirements

National Implementation of the Chemical Weapons Convention in Sweden 58

Thure Svensson

How to ensure compliance with the Chemical Weapons Convention - A companies 63

View
Peter Plant

Convention Requirements for Chemical Industry Declaration 66

Donald Clagett

The role of declaration in implementation of the CWC: The view of U.S. industry 79
Michael Walls

Confidential Business Information and the Chemical Weapons Convention:

Balancing competing interests 82
Michael Moodie

Summary of Discussion 87

Fourth Session: Inspection Requirements

Inspection of industrial facilities in accordance with Article VI 90

Ralf Trapp

National Authority and the inspection team: How to build confidence

during the inspection 109
Graham Cooper

Today’s Preparative Situation of Japanese Chemical Industry for Implementation of CWC 106
Takayoshi Idogaki

Summary of Discussion 116

Fifth Session: Industrial Concerns about Export Controls

The Future of Export Controls under Arms Control Agreements 118

Harald Müller

Industry Preparation for the CWC Entry into Force: An Indonesian Experience 125
Sushio Martodiwirjo

Transparency Mechanism for the Transfer of Chemicals Compatible 129

with the Complete Ban of Chemical Weapons
Félix Calderón

Chemical Weapons Convention Implementation: Industrial Concerns about 142

 Conference Proceedings, Bad Homburg 8 - 10 September 1995 7

Export Controls - The National Authority Perspective

David Halldearn

Summary of Discussion 146

B. Conference Papers of the SIPRI-Saskatchewan-Frankfurt

Group
Paper 1: Role and Function of a National Inspector in the National Authority 148
under the CWC
Paper 2: The Tasks of the National Authourity under the CWC 155
Paper 3: Facility Agreements and Model Facility Agreements under the CWC 166
Paper 4: Routine Inspections and Inspection Hours 172
Paper 5: Industrial Declarations and the CWC 174
Paper 6: Declaration Thresholds and Aggregate National Data 181
Ppaer 7: Declarations, Low Concentration and Mixtures 183
Paper 8: The Chemical Weapons Convention and Discrete Organic Chemicals 185
Paper 9: Chemical Trade and Article XI of the CWC: Some Comments 189
Paper 10: The Provisions of Article X: Some Comments 195
Paper 11: Liability of the Future OPCW 200
Paper 12: Effective Regime governing Sanctions against Staff Members of the 208
Technical Secretariat for Breaches of Confidentiality

C. Discussion Papers by Participants

Problems Standing before Russian Chemical Industry because of Ratification of the CWC 213
Igor K. Bazarnykh and Vladimir V. Mokrousov

The new European Union Regime for the Control of Exports of Dual-Use Goods 215
Thilo Marauhn

EC competences with regard to the CWC and its implementation - Some remarks 220
Peter Gilsdorf

Trade in chemical weapon precursors and production equipment under the CWC 222
Justin Smith

Preparations for receiving OPCW Inspections: Outreach to Chemical Industry 224

Robert Mathews

Australia’s Import and Export Licensing Arrangements under the CWC 237
Robert Mathews

CWC Implementation: Inspection Requirements and Lessons from 242

UK Practice from Inspections at Industrial and Government Site
John Walker
8 Effective Implementation of the CWC

D. Documents presented at the Conference

Documents Concerning European Community Competency with regard to the
CWC

a) Draft Proposal (not adopted) by the Commission (July 1992) 248

b) European Community Council Declaration (1993) 250
c) EC Council Regulation 3381 - Dual Use Regulation 252

PrepCom Document

a) Note by the Executive Secretary - Model National Implementation 261

Legislation (PC-XI/7)

Annex

Conference Programme 269

List of participants 272
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 9

Preface
The Conference on the ‘Effective Implementation of the Chemical Weapons Convention’ was
organised by the SIPRI-Saskatchewan-Frankfurt Group. It was more or less the final stage of a
research project, conducted during the last 14 months. The project was sponsored by a grant
from the German Volkswagen Foundation.
The SIPRI-Saskatchewan-Frankfurt Group’s aim was to provide scientific backup for the
implementation process of the Chemical Weapons Convention in States Parties and the
Preparatory Commission for the Organisation for the Prohibition of Chemical Weapons
(OPCW). During the course of the project the Group identified important legal, technical and
administrative issues for the implementation process, followed and analysed the work of the
Preparatory Commission for the OPCW, participated in all regional seminars and addressed
special problems of the implementation process at these seminars. The Group further elaborated
over twenty papers and a few fact-sheets on specific implementation issues. These papers are
freely accessible through the Group’s Internet-homepage and they were mailed to many
participants from the regional seminars.
When the Group started its work in summer 1994 it was composed of Prof Dr Ronald G.
Sutherland, Head of the Chemistry Department of the University of Saskatchewan and
counsellor to the Canadian Government on CWC issues, Dr Thomas Stock, Head of the CBW
Project of the Stockholm International Peace Research Institute and Thomas Kurzidem,
Researcher at the Institute of Public Law, Johann Wolfgang Goethe-University at Frankfurt.
Later on Patricia Radler, Research Assistant in the CBW Project at SIPRI (October 1994) and
York von Lersner, Research Assistant at the Institute of Public Law, Johann Wolfgang Goethe-
University, Frankfurt (March 1995), joined the Group. During the time of the project, the
Group was working in close contact with Prof. Dr Michael Bothe, Professor of Law, Johann
Wolfgang Goethe University, who also supervised the work of the Frankfurt branch.
There is particular need to thank many people without whom and their support we would
have been unable to organise this conference: First we want to thank all participants attending
the conference, and especially those, who submitted presentations for the discussions. For
organising the Conference the SIPRI-Saskatchewan-Frankfurt Group is especially grateful for
the financial support by the Volkswagen foundation. The Group wants to thank the Canadian
Government for financial support to the conference. For the support in the preparation process
of the conference we thank the Provisional Technical Secretariat of the Preparatory Commission
for the OPCW, the Foreign Office of the Government of the Federal Republic of Germany and
the German Chemical Manufactures Association (Verband der chemischen Industrie), the
German Export Control Office (Bundesausfuhramt in Eschborn), as well as the City of Bad
Homburg for generosity that the Conference could take place in the Stadthaus of Bad Homburg
and the logistical support.
Special thanks go to Christina Barkstedt, Jetta Gilligan Borg (SIPRI), Alexa Schulte, Anja
Wüst, Bernd Schönwälder, Christoph Meyer, Nikolas Lavranos and Thomas Dörschel (Johann
Wolfgang Goethe-University Frankfurt). Without their never-ending help during the
preparation of the conference and at the Conference itself, it would have been impossible to run
the conference. Special thanks to Nikolas Lavaranos for his technical support in finalizing the
Proceedings. Last but not least we have to thank Thomas Kurzidem and Dr Thomas Stock for
their enormous amount of work in organising the Conference.
The SIPRI-Saskatchewan-Frankfurt Group will continue its work in the field of disarmament
with special focus on the implementation of the Chemical Weapons Convention.
10 Effective Implementation of the CWC

Introduction
The effective implementation of the Chemical Weapons Convention (CWC), nationally and
internationally, will be the major precondition for a future successful functioning of this treaty.
For the first time in arms control and disarmament history a treaty calls for definite national
implementation by pointing to various obligations States Parties have to fulfil. Each State Party
to the Chemical Weapons Convention has agreed to a set of fundamental obligations under that
Convention. A State Party accepts the basic provisions of the Convention in Article I and will
implement the obligations by taking the necessary domestic legal and administrative measures
required by Article VII. It will provide the declarations and information required under Articles
III, IV, V and VI and this information will be subjected to the verification provisions of these
articles using the machinery of Article VIII. The State Party also agrees to accept challenge
inspections under Article IX if the need arises. National implementation regimes will differ
from State Party to State Party according to the impact of the CWC on its activities and its
chemical industry. Each State Party will have to decide on the nature, size and structure of its
National Authority.
The Conference entitled ‘Effective Implementation of the Chemical Weapons Convention’
was held 8-10 September 1995 in Bad Homburg, Germany. The organizer, the SIPRI-
Saskatchewan-Frankfurt Group on ‘Effective National Implementation of the Chemical
Weapons Convention’,1 has been working since autumn 1994 on preparing this project
conference, which was supposed to be the final stage of the project. When setting up the
conference agenda in late 1994 it was not clear if the necessary ratfications for entering into
force of the CWC could be, achieved in 1995. However, the project aimed to set up a
conference agenda which mainly focused on the CWC implementation obligations. The major
goals of the conference were:
• to bring together National Authorities and the chemical industry;
• to share information; and
• to suggest solutions to problems related to the implementation of the CWC.
Main topics of the conference were: (a) to focus on major aspects of national implementation
of the CWC from a National Authority perspective; (b) to achieve better understanding of
industrial concerns, and share information on implementation strategy. In the course of the
conference, areas were identified where there could be a general approach to common problems
and where harmonization will be possible.
In preparing the conference the SIPRI-Saskatchewan-Frankfurt Group had identified the
main areas where the conference should focus upon and which were forwarded to the
participants:
• What problems are caused by the need for national legislation for the implementation of the
CWC?
• What problems have occurred in setting up a National Authority and what were the
solutions selected?
• What are the problems related to collecting the required information from the chemical
industry?
• Have the guidelines developed for industry declarations created problems for a National
Authority as it acquires the necessary information to develop its national declaration
required under the CWC?
• Problems in preparing future inspections in industrial facilities.
• How can a National Authority best cope with the issue of confidential business
information at the national level?
1 The project was sponsored by a grant from the Volkswagen-Foundation (Germany).
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 11

• Article VII and interactions between individual National Authorities either via the
Organisation for the Prohibition of Chemical Weapons (OPCW) or directly.
• The provisions of Article XI relating to the National Authority.
• What are the legal problems in national implementation?
Keeping in mind that more than 2 1/2 years after the Paris Signing Conference 44 countries1
have ratified the CWC, one could assume that various experience in national implementation is
available. However, the practice looks different. Not every ratifier is willing to speak openly
about their experience. Some countries have ratified, without having finalized the internal
legislative and administrative processes. This situation could be related to the fact, that for most
of these ratifiers it was obvious that the entry into force of the CWC would not occur in the near
future or their implementation burden, with respect to administrative and legislative measures
would be minimal, so that with activating the legislation act by entry into force all necessary
measures could be performed smoothly. However, other ratifiers, mostly with more or less
highly developed chemical industry, required a detailed implementation process. They have
completed the legislative process and their National Authority have been designated. The
measures to acquire and to collect the information and data necessary from industry have been
introduced or are in preparation.
When conceptionalizing the conference we identified that it would be necessary to bring the
following groups together: (a) facility operators and industry representatives; (b) National
Authority experts and Foreign Affairs Department representatives; (c) experts from the
Provisional Technical Secretariat (PTS) of the Preparatory Commission to the OPCW; (d)
experts from Defence Establishments: (e) representatives from Non-Governmental
Organizations (NGOs). Despite the fact that the PTS together with the host countries had
organized a number of regional seminars during the last 1 1/2 year2 there was evidence that a
Non-Governmental Organization (NGO) such as the SIPRI-Saskatchewan-Frankfurt group
would be able to provide significant input to the implementation process.
It was clear to us, that by focusing mainly on the OECD countries we would have participants
from many countries who already have ratified the CWC3 and developed their implementation
strategy. Based on that the conference was planned to provide a platform to exchange
experience in the implementation process and to discuss, in particular, topics of industry
involvement. In addition, the conference organizers had in mind to provide a platform for
industry and National Authority experts to exchange their views on their concerns in the
implementation of the CWC. The active players in the implementation process, the industry,
facility operators and the National Authority experts should be given an opportunity to raise
their voice on issues of concern. The basic idea was not to organize this conference as another
instructional event, where participants are told what they have to do in the process of complying
with their obligations under the CWC. Rather, the conference should serve as a forum for open
discussion between the experts who are involved in the implementation and the industry
affected by implementation.
In the course of the conference we have focused upon three issues: (1) declaration
requirements; (2) inspection requirements and (3) Article XI issues related to trade and export
control. Furthermore, by starting off the conference with a session on a country’s experience in
the national implementation process and the setting up of its National Authority, we had in mind
to initiate a lively discussion as well as to inform other conference participants.
The comprehensive presentation of the German approach to national implementation of the

1 As of 5 December 1995.
2 Eleven such seminars have been held in: Warsaw, Poland, 7-8 December 1993, Bangkok, Thailand, 8-10 May
1994; Brno, Czech Republic, 1-2 June 1994; Lima, Peru, 1-3 September 1994; Pretoria, South Africa, 12-14 September
1994; Jakarta, Indonesia, 28-30 November 1994, Minsk, Belarus, 25-27 January 1995; Yaounde, Cameroon, 13-15
February 1995; Havana, Cuba, 14-16 March 1995; Yamoussoukro, Côte dIvoire, 8-11 May 1995; Seoul, Republic of
South Korea, 7-9 June 1995.
3 From the 21 participating countries, already 14 countries had ratified the CWC by end of October 1995.
12 Effective Implementation of the CWC

CWC on the first day of the conference was designed to present the different authorities and
agencies involved in Germany in national implementation as well as to listen to individual
chemical industry representatives with respect to their perceptions about the CWC impact on the
chemical industry in general and their company’s day-to-day activities in particular.
The conference made it clear that most countries have chosen a specific approach to national
implementation. This is due to several factors: (a) how international law has to be incorporated
into national law; (b) the size of the chemical industry; (c) the existing regulatory framework
with respect to industry, especially chemical industry, with respect to data reporting,
environmental regulations, trade regulations and work, health and safety regulations; (d) the
magnitude of trade in chemicals; (e) the organizational set-up of industry, e.g. Chemical
Manufacturers Associations; (f) the size of the problems related to old or abandoned CW; (h)
the level of activities under Schedule 1, including a single small-scale facility; and (i) the
experience of the respective Ministry of Foreign Affairs might have with respect to reporting of
declarable data through existing agreements .
With this conference the SIPRI-Saskatchewan-Frankfurt Group has contributed to the
process of national implementation in general and helped to clarify some of the problems of
concern to industry and National Authorities in particular. We believe that we have contributed
to speeding up the ratification process. The goal of the conference was not to provide models;
the goal was to provide a better understanding why countries are choose different
implementation approaches and what the concerns of industry are. As a result of this conference
it is hoped that the participants will be able to further develop their approach to an effective and
expeditious implementation of the CWC at the national level.
The following proceedings are structured in the same way as the conference was organized.
The conference presentations are the original ones as they have been presented by the speakers.
During the conference the discussion was not taped, and so the presented discussion reports
reflect only the views of the minute takers.
The proceedings are aimed at presenting the content of the conference as a whole and to
provide the interested community with the material without delaying publication by extensive
editing. We hope that with the following proceedings another impetus will be provided to the
effective implementation of the CWC.
There is a need to thank all the participants for their active participation in the conference.
Special thanks should go to the conference organizing staff from the Frankfurt University and
SIPRI.

November 1995

Thomas Kurzidem (Frankfurt University)

Dr Thomas Stock (SIPRI) and
Prof Ronald G. Sutherland (University of Saskatchewan)
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 13

A. Conference Presentations
Opening Session and First Session

Welcoming address

by Mr. Ian R. Kenyon

Executive Secretary
Preparatory Commission for the Organisation for the Prohibition of Chemical Weapons

Ladies and Gentlemen,

I am pleased to be here in Bad Homburg, and to have the opportunity to welcome you all to
this important conference. As is evident from the title, the primary focus of the conference is to
explore difficulties and strategies in achieving Effective National Implementation of the
Chemical Weapons Convention. An essential part of this process is to provide an opportunity
for National Authorities and chemical industry to share information and concerns and to work
together towards achieving solutions to problems encountered in implementing the Convention
on a national level.

It is vital that National Authorities have a clear understanding of industrial concerns and that
industry and National Authorities share information on implementation strategies. The need to
involve industry in the implementation process is not a new idea. The close association of
industry with the Convention dates back to the negotiations in Geneva. Industry has throughout
supported the Convention even though it involves their taking on extra burdens and obligations
to ensure its successful implementation. It is vitally important that there is awareness and
involvement in the process of national implementation so that importers, formulators,
processors and other users of scheduled chemicals are fully aware of the obligations in the
Convention and what facilities are declarable. In the same way, the links between National
Authorities of Member States and the Secretariat are important, serving as it does the role of
connector between industry and the Secretariat.

This Conference can play a central role in strengthening and maintaining these relationships. I
hope that all of you will take advantage of your presence here in Bad Homburg to forge such
links and I am sure that you join me in thanking the SIPRI-Saskatchewan-Frankfurt Group for
taking the initiative in organising this event and bringing together such a useful combination of
participants.

Thanks are also due to the Volkswagen Foundation for their generous financial contribution
towards the costs of this conference. I would also like to take this opportunity to thank the
German Government, not only for their financial support in organising this conference, but for
their pivotal role in promoting the Chemical Weapons Convention and their ongoing efforts to
rid the world of chemical weapons. Germany took the lead in bringing the Convention to a
conclusion at the decisive stage of the Geneva negotiations and was among the first States to
deposit their instrument of ratification. It continues to pursue diplomatic and political channels
to encourage speedy entry into force of the Convention. I am pleased to be able to report that
the ratification process continues at a steady pace - with the number of ratifications required for
14 Effective Implementation of the CWC

entry into force now standing at 35 - well over half of the required 65 ratifications. In the
course of the Eleventh Plenary Session of the Preparatory Commission, several Member States
updated the Commission on the status of ratification in their countries and on the basis of that
information, it seems that many States expect to be in a position to deposit their instrument of
ratification shortly.

However, concern has been voiced as regards the status of ratification in both the United
States and the Russian Federation. As the two major declared possessors of chemical weapons,
it is of special importance that both the United States and the Russian Federation ratify soon.
The international community has put its faith in this Convention as an agreement which will
enhance global security and all peace loving nations see the clear need for these two important
states to be among the first 65 States to ratify the Convention. In an effort to renew high-level
political attention and commitment, a diplomatic initiative is being undertaken taken whereby
visits will be made to Washington and Moscow by myself, Ambassador Zachariah J. de Beer
of South Africa, Chairman of the Preparatory Commission and his predecessor, Ambassador
Finn K. Fostervoll of Norway.

The purpose of these visits is to discuss with top level governmental officials the status of the
ratification process and hopefully help to accelerate the process so that the Convention can enter
into force without further delay.

In The Hague, steady progress has been achieved by the Preparatory Commission for the
Organisation for the Prohibition of Chemical Weapons in tackling the issues needing resolution
so as to be able to effectively implement the Convention once it enters into force. The current
formal assumption is that the trigger point will be either late 1995 or early 1996 and our work is
paced towards that assumption. Although work remains to be done on some difficult issues,
progress has been made in many areas.

The OPCW Policy on Confidentiality has been finalised and was approved by the
Commission in the recent Eleventh Plenary Session. The Policy sets out principles for the
handling and protection of confidential information within the Organisation, establishes the
Confidentiality Commission and lays down procedures to be followed in the event of a breach
of confidentiality. This represents a significant achievement because both Member States and
industry must be assured that proper systems are in place to protect confidential or sensitive
information.

Still on the subject of protection of confidential information, a security study for the planned
Information Management System in the Secretariat has commenced on schedule and will be
completed in time for the next Plenary Session in December.

A Trial Declaration Exercise placing particular emphasis on the Communications interface will
be conducted from 12 to 18 October 1995. The primary purpose is to determine the possible
requirements for an efficient communications system for the transmission of information and
data in both hard copy and electronic form between National Authorities and the future
Technical Secretariat.

Next week, the second course for personnel of National Authorities from developing
countries commences and runs to 29 September. The focus of the course is on national
implementation and verification issues.

The selection process for inspector trainees continues with a total of 1,664 applicants from 81
Member States having been screened by late July. In total, 360 candidates were short listed for
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 15

interview, some of which have already been conducted and the remainder of which are
scheduled to be completed by November. Unfortunately, there was a shortage of applicants for
some positions and therefore the Preparatory Commission is trying to actively encourage
applications from suitably qualified candidates. In particular, of the second training group, there
are 26 vacancies for the position of Chemical Production Logistician/Material Resources
Planning Specialist and 54 vacancies for Chemical Production Technologist. In this regard I
would ask for your help in making suitably qualified candidates aware of these opportunities.

In terms of inspector training, following negotiations between Member States and the
Secretariat, there are now sufficient places in Module 2 of the General Training Scheme for the
trainee inspectors and negotiations continue in respect of Module 3. Procurement of inspection
equipment for training and evaluation purposes has begun on the basis of the Draft OPCW
Procurement Policy and Regulations.

The Third Combined Meeting of the Expert Group on Chemical Industry Issues with
representatives from the chemical industry was held in The Hague on 26 and 27 June 1995. At
that meeting, industry representatives were briefed on the current status of preparations in the
Commission for entry into force. In turn the industry representatives underlined their strong
commitment to the Convention. The focus of the meeting was on those issues of particular
concern to industry including the Declaration Handbook, the use of databases to meet Article XI
requirements and model agreements for industry facility agreements. The Department of Trade
and Industry of the United Kingdom and the Chemical Manufacturers Association of the United
States briefed the meeting on "table-top" exercises undertaken in relation to the draft Schedule 2
model facility agreement. A further "table top" exercise has since taken place in Japan.

Although work on the Declaration Handbook continues, however there are still some
technical issues which require resolution, many of which are of direct concern to the
participants of this conference. These include reaching agreement on establishing guidelines for
declaring scheduled chemicals in low concentration; establishing a methodology for the
collection of the national aggregate data of Schedule 3 chemicals; whether facilities
manufacturing discrete organic chemicals by biological processes should be considered as
covered under the Declaration requirements of Part IX of the Verification Annex and finally,
whether the Harmonised Commodity Description and Coding System of the World Customs
Organisation could be used to declare the main activities of plant sites declarable under Part IX
of the Verification Annex. Solutions on these issues will also affect preparations for national
implementation and accordingly, I urge all of you to engage in co-operative efforts and offer
your considered suggestions which may help towards finding workable solutions to these
difficult problems.

Progress on the development of an Analytical Database is also impeded by disagreement on

the scope of such a database, that is, whether or not data should be restricted to scheduled
chemicals. As work cannot be finalised on compiling data until this dispute has been resolved,
there are increasing concerns within the Secretariat that the database may not be completed in
time for entry into force.
The Inspection Manual also needs to be finalised and related technical issues need resolution
such as challenge inspections, old and abandoned chemical weapons and appropriate policies
regarding chemical weapons production facilities.

In terms of preparation at the national level, the broad scope of the Convention requires a
variety of tasks to be completed by each Member State. In addition to drafting and enacting
national legislation, these tasks include designating or establishing a National Authority for
proper implementation, making contacts with industry, preparing declarations, establishing data
16 Effective Implementation of the CWC

collection systems and training escorts in receiving and guiding inspectors. Because of these
wide-ranging tasks and the potential difficulties involved with them, this conference represents
an ideal vehicle to discuss these problems from the perspective of both industry and National
Authorities, sharing experiences and hopefully suggesting some solutions or ways forward.

Although some complex tasks still lie ahead, it is important to keep in mind the real progress
that has been achieved. With more than half the ratifications required for entry into force of the
Convention, the international community comes ever closer to eliminating an entire class of
weapons of mass destruction. Conferences such as this one provide the opportunity to review
progress and re-examine strategies for further progress. I would therefore urge you to renew
efforts to work towards formulating proposals that could resolve the last few remaining
difficulties.

I would like to once again extend a warm welcome to all of you here in Bad Homburg and
hope that the conference proves fruitful.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 17

The Conference on the Effective Implementation of the

Chemical Weapons Convention: Goals and Results

Prof. Dr. Michael Bothe

1. Introduction

The conference met at a time critical for achieving chemical disarmament. The current
situation of suspense is the result of a long process, as a matter of fact of efforts having lasted
for many decades. Chemical disarmament became a political goal very soon after the invention
of those weapons and their actual use in the First World War. But the League of Nations failed
in achieving this disarmament, the only practical result of these negotiations was the treaty on
the prohibition of use, the Geneva Protocol of 1925. After the break-up of the League of
Nations disarmament negotiations in 1934, those efforts were seriously resumed only about
1970, probably both as a result of protests against the use of certain chemicals in warfare
during the Vietnam war on the one hand and the beginning detente between the Soviet Union
and the United States on the other. The BWC of 1972 came as a quick success in these
negotiations, but this was only due to the fact that those weapons were not considered to be a
serious military option at that time. In the light of more recent developments in biotechnology,
this assumption now turns out to be erroneous.

After the adoption of the BWC, it took another 20 years of consultations and negotiations to
agree on a text of the CWC. These weapons have been a serious military option since their
invention, despite of the fact that they have met with moral and legal condemnation ever since.
Because of their military significance, a reliable control of compliance has always been
considered as a conditio sine qua non for the conclusion of a convention on chemical arms
control and disarmament. But in this respect, several countervailing interests had to be
accommodated: A security interest in reliable compliance, another security interest in a
verification system which is not too intrusive and an economic interest in a verification system
that does not endanger the interests of chemical manufacturing, trade and the use of chemical
products. The result is innovative in many respects. A highly sophisticated system to ensure
compliance has been created which uses a complicated mix of national and international
measures. The conference concentrated on the national component of this mix of measures
which is as crucial as the international one.

The conference met at a time crucial in many respects. After the adoption of the Convention in
1993, the process of bringing it into force has come to critical stage, in particular by the
slowness of the ratification process in the only two states which admittedly possess CWC
arsenals, namely the United States and the Russian Federation. Problems of national
implementation may play a certain role in this slowdown. Thus, clarification of these problems
might be helpful. On the other hand, it is absolutely necessary for a successful functioning of
the Convention that the ratifying states are well aware of the implications which the Convention
has for the national legal order. In a number of states, national legislation and additional
implementation measures have already been adopted. It is thus possible to compare
experiences, single out issues and point to solutions.
The lessons from CWC implementation will also be important for shaping implementation
systems in other fields of disarmament where negotiations currently take place, in particular
18 Effective Implementation of the CWC

BWC verification and the CTBT.

The approach of the conference was a comparative one: Problems and solutions were to be
analysed by comparing national implementation measures which have already been taken or are
in an advanced stage of preparation. This approach is premised on the fact that the CWC
requires certain results to be achieved at the national level:

• There must be a "national authority" for a number of purposes defined in the Convention.
• There must be a flow of information on relevant activities and circumstances from member
states to the OPCW and from the OPCW to member states.
• Certain inspections must take place, it must be possible that they are effectively conducted.
This is part of the information flow.
• In these information flows, confidential information must not leak.
• Certain transfers of chemical substances which would endanger the purposes of the CWC
must not take place.
• Private persons must not engage in activities prohibited to states.
• States are free as to how they actually achieve these results.

The major exception to this rule of freedom is the provision that there must be a national penal
legislation in order make sure that the obligations existing under the Convention are effectively
respected. Apart from that, the choice of means made by the state is determined only by one
international condition: the result required by the Convention must indeed be achieved. There
are, of course, different possibilities both as a matter of practical approaches and of legal
technique. Whether and to what extent those approaches are effective can be ascertained by an
exchange of information and comparison. Comparison can also instigate legal creativity, it
points out problems and possible solutions. But comparison never can offer instant ideal
solutions. What is effective in one legal system or social context, may not be helpful in another.
With that caveat, the following lines try to draw some comparative conclusions from the
debates of the conference and the materials submitted in writing from a considerable number of
countries.

2. The National Authority

According to the Convention, the key function of the National Authority is to serve as a focal
point or liaison between the state and the OPCW or with other states on matters of OPCW. But
there are many other CWC related national activities. There is thus the fundamental question
whether and to what extent the National Authority itself should also perform these internal
functions or whether this should be the task of other government agencies, which then requires
effective lines of communication between the National Authority and those other agencies. A
comparison shows that it is not possible or at least not advisable to concentrate all CWC related
functions in one agency. On the other hand, there does not seem to be a preference for a
National Authority of the letterbox type.

One can distinguish three main elements in CWC related functions: foreign affairs, defence
and economic affairs. The survey shows that the choice made by states as to the National
Authority is usually between the Department of Foreign Affairs and that of Economic Affairs.
For the time being no example is known where the agency is established within the Department
of Defence. Whether the exclusion of the Department of Defence is always appropriate in
particular for countries of the Third World remains to be seen as in some countries, major
technical resources are concentrated in that Department. The choice of the Department of
Economic Affairs is premised on the fact that major implementation activities, namely those
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 19

relating to verification within private industry and trade of chemicals fall within the sphere of
competence of that Department.

As a rule, the National Authority and, as the case may be, specific CWC related agencies are
not created as completely separate institutions, but rather as limited units within existing
governmental agencies. The fundamental question concerning their capacity to effectively
discharge their duties is of course that of the resources assigned to those units. In this respect,
there is still a great variation between various states, but for the time being, the resources are
rather limited. This is of course also a question of the specific national concept of the authority,
as a letterbox type of agency does not need as much money as an agency which is also
responsible for administering internal verification activities and information management.

3. The management of information flows

The heart of the verifications mechanism is a system of declarations. The member state must
give, in these declarations, specifically defined information on specifically defined installations
and activities. This information is the point of departure for the conduct of inspections. This
system of on-site inspections is then the heart of a mechanism creating confidence in
compliance by states and also detecting possible non-compliance. It is thus essential for the
functioning of the whole system established by the Convention that these declarations are
complete and accurate. The information to be given, however, is only to a small extent in the
possession of government agencies. The state must procure that information from private
persons and enterprises. It is thus essential that the state knows which enterprises and persons
are in possession of relevant information and that those enterprises and persons know that they
have to give this information and what the required information is in concrete terms.

The necessary information flow from the point where the information originally is to the
government agency which makes the declaration thus has to be organized both in practical and
in legal terms. The publication of the Convention or of implementing legislation in an official
gazette is certainly necessary, but not enough in order to make sure that all those actors
possessing relevant information really channel them to the government.

As a first step, there is the necessity that all relevant actors know what they are supposed to
do. Thus, before information can flow as required from private parties to the government and
then from the government to the OPCW, there must be an information flow in the reverse
direction. Information on the need to give information must flow from the OPCW to the
governments, from the National Authority to other government agencies concerned, from those
agencies to private enterprises and then within private enterprises to the various points where
the information readily is available, e.g. where specific chemicals are produced, processed or
otherwise handled. That is what has been called an information cascade.

The major issue is where to correctly direct this cascade. The government has to find out
which enterprises are relevant for this purpose, the enterprises have to find out where, within
the enterprise, are those units which are relevant for CWC purposes. Information existing and
being handled in other regulatory fields may be useful for that purpose, especially information
relating to safety, health and environmental matters. But information generated in these contexts
is by no means coextensive to the one required for CWC purposes. To pinpoint relevant actors
possessing information, a major cooperative effort between government and industry is
necessary. It has to be noted that industry and trade associations can play and have indeed
played a major role in this field by channelling information to their members and by helping the
government to find out which the relevant economic actors are.
20 Effective Implementation of the CWC

A major element in the determination of persons or enterprises required to give information is

a concrete definition of the information required. This, in turn, depends on the interpretation of
the declaration requirements. Although the CWC seems to be rather precise and specific in this
respect, there are a number of interpretation problems, in particular the question what
constitutes a "low level concentration" or a "discrete organic chemical". Both notions are
important in triggering declaration requirements. According to Verification Annex, Part IX,
para. 1, a declaration must be provided for plant sites that produce more than 200 tons of
"unscheduled discrete organic chemicals". Although there is a definition of "discrete organic
chemical" in Verification Annex, Part I, para. 4, doubts are possible in concrete cases. An
interpretation is thus necessary.

The concept of "low level concentration" is important for the limitation of declaration
requirements according to Verification Annex, Part VII, para. 5.

As the declaration requirement must be internationally uniform, an internationally uniform

interpretation of those concepts is necessary. But it appears that consensus on these issues is
difficult to achieve. If the Conference of the Parties is unable to come up with an agreed
definition, then the definition must be given on the national level, for instance by governmental
guidelines, which is, of course, the second best solution.

A problem similar to that of the declaration threshold is the actual shape of declarations. In
this respect, uniformity is also desirable because of the necessary equality of burden among the
states, but also in order to keep data comparable from one state to the other. A "declaration
handbook" published by the OPCW will be helpful in this respect. Here again, there is a task of
interpretation for the National Authority. As the declaration to be given by the state depends on
the information given by the enterprise, the question of the actual shape of the declaration also
goes down to the level of the enterprise, where, as with the information cascade described
above, there also exists an interpretation and transfer problem. There is, it must be noted, also a
problem of the structure of the enterprise.

The problem of making sure that the required information is actually given by those who
possess it is, finally, not only a practical one, it is also a legal problem. In order to ensure that
the requirements are indeed respected, there must be a clear legal duty to give this information.
Thus, it is necessary that this obligation of private enterprises and persons has a clear basis in
law. Implementation legislation must take that requirement into account. Where the national
implementation statute does not contain a relevant provision, there must at least be an enabling
clause which provides for a regulation to that effect.

4. The conduct of inspections

In relation to inspections, there are two countervailing interests at stake: On the one hand, an
interest in reliable control of compliance, which means free access to premises and to
information available on premises, on the other hand, an interest in non-intrusiveness, in the
protection of the normal production processes and sensible information. This is both a legal and
a practical problem. From the practical point of view, it is important that the inspection is
meaningful. Its mere existence or possibility must serve as an effective deterrence against non-
compliance. Thus, there must be a reasonable degree of strictness. On the other hand,
inspections will only run smoothly if there is a considerable degree of cooperation, of goodwill
and communication. Thus, the "hostile" inspection which has to take place in Iraq should not
serve as a model. But such hostile inspections may occur in case of challenge inspections. But
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 21

in spite of the necessity of goodwill and cooperation, a desire to achieve it should not lead to an
atmosphere of complacency of assumed compliance. Inspections should also be well prepared,
on the level of the OPCW, of the National Authority or any other agency which is responsible
for the national escort and that of the enterprise. Trial inspections can still provide a good
training and preparation for that purpose.

On the legal level, the question of access for inspection teams against the will of an owner
raises a constitutional problem in many countries. Usually, it requires statutory authority for the
agency or person who is to enter the premise and, to a varying degree in different constitutional
systems, a judicial decision. Although it is true that the cooperation of the owner should be
sought and that, at least for routine inspections, this can be assured through the participation of
the owner in the facility agreement between the state and OPCW, which regulates the details of
inspections, access against the will of the owner must always be possible in order to enable the
government to enforce any entry it is required to facilitate according to the international
obligations of the state. This, it is submitted, is necessary not only in relation to challenge
inspections, but also in relation to routine inspections as there may be situations where an
owner is not co-operating, even though he might have agreed to the inspection in a previous
agreement. As to the protection of the normal production processes, in particular against any
accident which might be caused by an inspector, this is in the first place a responsibility of the
OPCW which must make sure that the inspectors know how to behave in a chemical industrial
environment. It is also the responsibility of the receiving state to make sure that relevant rules of
behaviour, in particular safety rules are known to the inspectors. It is also a responsibility of the
inspected facility to give notice of rules it has adopted for the safety of its installation and of
possible particular dangers to personnel.

If there is a disturbance of the production process or an accident causing damage, the

question of liability arises. The German implementation legislation has adopted a very generous
approach to this question. The German government will pay compensation to the enterprise
according to the rules which would apply if the damaging act or omission were performed by a
German government official.

5. Confidential information

The information flow envisaged by the CWC runs from an enterprise in a given member state
to the National Authority and from there to the OPCW or, in the case of inspections, directly to
OPCW, and as the case may be, to other member states. The rules of the CWC on confidential
information are mainly concerned with the protection of confidentiality by OPCW and its
agents. But the necessity to protect that information also exists in relation to the information
flow which takes place within the country of origin and within the country of destination. As to
the country of origin, this is not an international legal question, but a matter of national law and
expediency. As to the country of destination, there is an explicit obligation to protect
confidentiality according to the Confidentiality Annex, para. 4. In order to be able to fulfil this
obligation, some national implementation measures are also required. It has at least to be
examined whether existing national rules on the confidentiality of administrative files are
sufficient, in particular in view of access to information acts. This, it appears, is a problem
which has so far not been attracted enough attention in implementation legislation or other rule
making.

6. Criminal law
22 Effective Implementation of the CWC

The specific provision providing for an obligation to adopt a penal legislation (art. VII para.
1a) relates only to the prohibition for natural and legal persons to engage in any activity
prohibited to a state party under the Convention. There are, however, a number of additional
duties where the question arises that whether they could or should be enforced through a
criminal sanction. These are in particular the obligations already discussed concerning the
information flow and an obligation to grant access to inspection teams. This is a matter of
national policy, not of international obligations stricto sensu.

The definition of the criminal act poses some problems, as there are different ways of linking
this definition to prohibitions existing under the Convention. The problems of interpretation
which the international prohibition poses make a simple reference to the Convention somewhat
problematic.

7. Prohibition of certain transfers of chemicals

Export controls have been and still are a very controversial issue. The question whether and
to what extent such controls may be maintained between the parties is a subject of discussion.
There are, as a matter of fact, three problems. To what extent are restrictions still permissible?
How are existing restrictions (permissible or required under the CWC) administered? What are
reporting requirements in relation to imports or exports?

As to the first question, it has to be recalled that, as between the parties to the Convention, the
Convention requires export restrictions only in relation to schedule 1 chemicals. It requires
certain export bans in relation to non-parties. Whether and to what extent export bans would
still be permissible as between the parties to the Convention is at least questionable. But an
export licensing system does not amount to an export ban and, thus, remains admissible.
Without an export licensing system, it would even be impossible to implement the export bans
which are required by the Convention.

As to the second question, the existing export licensing systems can and should be used, but
they must be adapted to the particular situation existing under the CWC. The transparency of
the export licensing system is important.

As to the third question, it has to be recalled that there exist certain declaration and reporting
requirements in relation to transboundary transfers of certain chemicals. In relation to schedule
1 chemicals, each transfer has to be notified to the Technical Secretariat (Verification Annex,
Part VI, para. 5). In relation to schedule 2 chemicals, national aggregate data must be provided
on imports and exports (verification annex, part VII, para. 1). It has to be made sure that these
reporting requirements are actually fulfilled, and this cannot be done without some kind of
export control system providing at least for mandatory notification of transfers. Existing export
control systems, at least in developed countries, are probably well suited to fulfil these
functions, but this has to be examined by each country and must not necessarily be taken for
granted.

In the European Union, exports controls are a matter of community law. The dual use
directive, which cannot be commented here, does not cover all the questions of export controls
and reporting requirements raised by the CWC. It must be made sure that the general export
control rules of the EEC do not prevent states from fulfilling their obligations under the CWC.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 23

8. Some conclusions

Making CWC work requires a cooperative effort between the OPCW, governments, industry
and non-governmental organisations, in particular industry associations, in all fields of
implementation of the Convention. It seems that there is currently a great political will to
cooperate, but it may lose momentum if the entry into force of the Convention is further
delayed. The functions of government officials who have been assigned to CWC related tasks
are currently exercised on a kind of standby basis, they are so to say suspended. In this
situation, in particular in view of the financial constraints on government spending, this
government staff may be more and more reduced, and so will the budget assigned to those
functions.

An essential problem of the implementation is uniformity. The substantive and procedural

obligations of the states parties should be the same, although implementation may take different
forms. Uniformity requires an interpretation effort on the international level. Related to this is
the problem of certainty of expectations. Public authorities and industry must know what to do.
For that purpose too, clarification through additional interpretation efforts is necessary.

There should be more awareness that the efforts of governments in relation to CWC cannot
end with ratification. Quite to the contrary, they really begin at this point. A great number of
legislative, regulatory, budgetary and organisational measures must be taken.

The conference, by providing for an exchange of views and elaborating comparative materials
has helped to create a better awareness of the problems. Comparison has also shown that there
is no single model for measures to be taken, neither for government nor for industry. But
comparison means a useful tool for a better solution of the existing problems. This being so, it
is worth considering creating a routine process of reporting and exchanging information
concerning national measures taken for the implementation of the Convention. Such process
could become part of the review which has to be organized by the Conference of the Parties
under Art. VIII para. 22 CWC.
24 Effective Implementation of the CWC

First Session: Country Reports on the implementation of the CWC and

the establishment of the National Authority1

After the presentation of Prof. Bothe the remaining time of the first session was allocated for
information sharing on the establishment of the National Authorities. Short presentations were
given on the problems occurring during the establishment of the National Authority. It was the
intention of the organisers of the conference to provide this session as a platform to exchange
experiences, that States Parties gained during the establishment of the respective national
authority and to identify common problems as well as those characteristics of specific countries.
Further, information on the establishment of a National Authority should be provided to those
countries, that have not started so far with the establishing process or which are still at the
beginning of developing of National Authorities. Finally, an overview on the implementation
processes and the establishment of the National Authority in the participating states should
serve as a trigger point for a lively discussion on the issue as well as for the subsequent
sessions of the conference. The presented reports below on the implementation process and on
the establishment of National Authorities are based on interventions of participants, who are
familiar with the establishment of the National Authority in their home countries and on the
responses of National Authorities to a questionnaire of the SIPRI-Saskatchewan-Frankfurt
Group sent to National Authorities2. The questionnaire included the following:

• How do you identify the companies concerned or involved with CWC declarations?
• Which other trade organisations have you identified as being involved in the use of chemical
products?
• Do you require information on particular CWC concerned substances below the threshold
from the identified companies?
• How do you work in terms of an outreach strategy with companies identified as affected by
the CWC?
• How do you prepare identified companies for the possibility of routine inspections?
• Do you run a programme to prepare staff for ‘escort duties’?
• Have you carried out any trial inspection with respect to declaration tasks and possible
inspection activities at the facility?
• Have you carried out any preliminary work on Facility Agreements?
• How do you intend to cope with the task of checking the completeness and accuracy of
individual facility declarations?
• How is chemical industry involved in national implementation?
• What are the problems you have encountered in drafting/approving the legislation?

A final question referred to the size, budget and location of the National Authority, existing
data on affected companies, the involvement of other governmental authorities in the
implementation process and the implementation legislation.

1 Report by York von Lersner, Researcher at the University of Frankfurt.

2 The reports of Austria, Denmark, Japan, Russia and Brazil are solely based on the questionnaire.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 25

a) Argentine1

The National Authority of Argentine has been has been established by Presidential Decree and
at present a ‘unit of coordination’ is located in the Ministry of Foreign Affairs. Participants
were informed that Argentine is at the beginning of its implementation process. So far the
National Authority focuses mainly on the drafting of the implementation legislation and the
identification of affected industry. It was indicated that Argentine took a mirror writing
approach regarding penal obligations under the CWC. Further the decree establishing the
National Authority will also create a National Registry of Industries related to the products on
the schedules. Regarding the identification of affected industry a survey was carried out
targeted at companies, that may be subject to declaration. Unfortunately there was no full
response by industry to the survey, so that the result is considered as being
[Link] will be cleared and inspections controlled by the Institute of Research of
the Armed Forces (CITEFA). The Secretary for Industry will be responsible for liason with
industry for the National Coordination Unit.

b) Australia2

The National Authority for the CWC (CWCO) is located within the Ministry of Foreign
Affairs. The CWCO has prime responsibility for all CWC issues and is staffed by two persons
working full time. It receives significant assistance by the Defence Science and Technology
Organisation and the Peace, Arms Control and Disarmament Branch of the Department of
Foreign Affairs and Trade. The National Authority is at the moment focusing on three mains
tasks. These are a) the identification of declarable activities and facilities; b) informing industry
on CWC issues and establishing communication links with industry; and c) the finding of
methods to assure correctness and completeness of declared information from industry. With
regard to the identification of industry, thought has been given to public relations methods,
legal sanctions and that the National Authority itself should go out and to identify facilities,
subject to declarations under the implementation law. Participants were informed that Australia
carried out various surveys to identify facilities. The first survey was carried out in 1991 to
estimate the impact of the CWC for Australia. A questionnaire was sent to approximately 2000
companies, selected from telephone directory listings. The following surveys, carried out by
the National Authority, was then based on, inter alia the, membership lists of chemical industry
bodies and contact lists of chemical regulators as a result of the first survey and other sources
for identifying concerned companies in Australia. As a result of these surveys it can be stated
that the response of the first survey was only about 60 per cent complete. This was probably
due to the questionnaire, as the forms used in later surveys were simplified and the turn out
increased significantly. Further, there are almost no problems to identify producing facilities,
whereas the identification of facilities processing or consuming Schedule 2 chemicals poses
many problems for the National Authority. But the greatest problems the National Authority is
facing, is to identify facilities, that process or consume DOCs. This is due to the incomplete
definition of DOCs in the Convention and the failure to provide such a definition by the
PrepCom. In its last survey the CWCO also sought information based on lower reporting
thresholds than those specified in the CWC in order to provide baseline data for the national
monitoring of ”sub-threshold” facilities. The CWCO intents to carry out surveys at regular
intervals to cover all CWC relevant activities in Australia and to assure accurate declarations by
Australia to the OPCW.
Regarding the information for companies on the CWC process and the obligations that
companies will have to comply with information packages have been mailed to all identified

1 Argentine ratified the Chemical Weapons Convention on 2 October 1995.

2 Australia ratified the Chemical Weapons Convention on 6 May 1994.
26 Effective Implementation of the CWC

companies. Further planning is underway to assist and prepare companies for routine
inspections, including a clear explanation as to why certain chemical companies are to be
monitored by the CWC, briefings on rights and duties of the company during a routine
inspection as well as the rights of the international inspectors, discussion on concerns
companies may have e.g. with respect to health and safety issues or confidential treatment of
information. The establishment of standing procedures to apply in the event that notification of
an inspection is received from the OPCW and development of a draft facility agreement.
Regarding the last point preparations have commenced to develop a trial facility agreement with
a company.
To assure correctness of declared information the national inspectors will have the power to
inspect any facility with the occupier’s consent or if necessary with a warrant, if there is
reasonable grounds for suspecting that the facility is in breach of national legislation.
Finally, it was pointed out that one of the major problems in drafting the implementing
legislation was the designing of a permit system for Schedule 1 chemicals.

c) Austria1

The National Authority of Austria will be part of the Ministry of Economic Affairs. Its size
has not been decided so far. Its main activity at the moment is the identification of companies,
which will be affected by the CWC. Although the investigation of companies has not been
completed, approximately 100 - 120 companies will be affected. In this respect it must be noted
that declarations below thresholds are not required. The preparation of these companies for their
obligation under the CWC is conducted through seminars and publications. The same applies
for preparation of routine inspections, although individual assistance is offered likewise. A
special programme for escort teams has not been set up, neither was a trial inspection
conducted. The National Authority has also started preliminary work on facility agreements.
During the whole implementation process of the CWC special emphasis is put on close co-
operation with industry, especially the Austrian Chamber of Commerce, which is a member of
the board of the National Authority.

d) Brazil

Brazil has not yet set up a National Authority. However a working group has been
established to draft the relevant implementation legislation, which has now been finalised. The
draft legislation requires two separate decree laws, one for implementation of CWC obligations
and one for the establishment of the National Authority. According to the draft legislation the
National Authority will be set up as an interministerial commission composed by
representatives of the following governmental authorities: Ministry of Foreign Affairs, Ministry
of Navy, Ministry of Army, Ministry of Air Force, General Staff of the Armed Forces,
Ministry of Industry, Trade and Tourism, Ministry of Science and Technology and Secretariat
of Strategic Affairs of the Presidency of the Republic. The Secretariat of Strategic Affairs of the
Presidency will exercise the function of the Executive Secretariat of the interministerial
commission. During the whole process of implementation the chemical industry has been
involved through ABIQUIM, the Brazil Manufactures Association. With the help of ABIQUIM
the process of identification of companies has been started through seminars and publications as
well as other implementation preparation, including trial inspections2 and work shops on the
implementation of the CWC. As a characteristic of the draft implementation legislation it is
noteworthy, that the draft empowers the National Authority to promote on site inspections to
check the completeness and accuracy of facilities’ declaration.

1 Austria ratified the Chemical Weapons Convention on 17 August 1995.

2 See on that the report of the trial inspection in CD/985/Rec.1. dated 03/20/89.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 27

e) Canada1

In Canada the National Authority has been organised within the Department of Foreign
Affairs and international trade Canada. It is staffed at the moment with 3 professional staff
members and 2 support staff members. The Canadian Implementing legislation has now been
finalised2. A lot of creativity was necessary to harmonise the implementation legislation with
existing laws. Once the drafting of the implementation legislation was finalised the main
problems for the National Authority are at the moment the identification of companies and
outreach to industry. For the former questionnaires were sent to more than 2100 companies
identified through lists of chemical industry associations and related trade organisations. The
National Authority has also consulted Statistics Canada, a governmental department for support
in researching possibly affected industry. This led to a figure of an additional 7500 companies
which could be affected by the implementation of the CWC. Again questionnaires have been
sent to those companies. Unfortunately the response to the survey was rather low. Only about
30 per cent of the companies have responded to the questionnaire so far. Now that the
legislation has been passed, it is the intention of the National Authority to inform all identified
companies on the CWC and their obligations. A general brochure that explains the implication
of the CWC for Canadian companies has been published and oral presentations and meetings
will be held for selected associations and companies. Further, publications and seminars will be
used to inform affected companies. Seminars, video presentation and individual briefings are
the means chosen to prepare companies for routine inspections. The Canadian government has
also conducted two trial inspections and anticipates, that the National Authority will conduct
more. Other preparatory work for inspections, such as training of escort teams and preliminary
work on facility agreements is at an early stage or pending for decision in The Hague.
Participants were informed that finding of appropriate language to reconcile the needs of the
Convention with Canadian legal practice, financing the various activities of the National
Authority and identification of affected companies were or are still the major problems in the
implementation process.

f) Denmark3

In Denmark the National Authority is within the Ministry of Business and Industry, with an
proposed staff of 4 persons and a budget of 3 millions DKK. Approximately 50 -100
companies will be affected by the CWC. The identification of companies is conducted by the
Ministry of Taxation in co-operation with the Association of Danish Chemicals Industry. The
close co-operation with this association and other relevant organisations has determined the
whole implementation process and will continue in the future. This is of particular interest for
the preparation of affected companies, which is intended to be carried out through seminars and
publications. With respect to the Danish implementation legislation it should be mentioned that
the implementation legislation is not valid yet, but will enter into force on the same day the
CWC enters into force. The legislation does not cover all obligations under the CWC, but
provides the legal framework for the issuing of the ministerial orders, which then addresses the
relevant obligations. Finally no decision on declarations below threshold has been taken so far.

g) Finland4

1 Canada ratified the Chemical Weapons Convention on 26 September 1995.

2 See Chemical Weapons Convention Implementation Act - Bill C-87.
3 Denmark ratified the Chemical Weapons Convention on 13 July 1995.
4 Finland ratified the Chemical Weapons Convention on 7 February 1995.
28 Effective Implementation of the CWC

It was indicated that Finland had deposit its ratification instruments in February 1995. The
National Authority will be established within the Ministry of Foreign Affairs for co-ordination
reasons. Its tasks will be entrusted to various institutes. Thus, the Finnish Institute for
Verification of the CWC will be in charge of all issues related to declarations requirements and
the collection of data. The Department of Trade and Industry will regulate exports controls as
well as licence requirements. Finally, with respect to licences for scientific research and medical
matters the Institute of Medicine will be involved. As a specific characteristic of the Finnish
legislation participants have been informed about the unique approach to financial resources. It
was pointed out that all inspected facilities are obliged to pay for the cost of the inspection.

h) Italy

Due to co-ordination reasons the National Authority will be within established within the
Ministry of Foreign Affairs, but other ministries, such as the Ministry of Defence, Ministry of
Industry and Trade, Ministry of Foreign Trade, Ministry of Finance, Ministry of the Interior
and the Ministry of Justice will also be involved in the establishment of the National Authority
and the implementation of the CWC. Italy is still at the beginning of the implementation process
due to the pending implementation legislation before parliament. So far affected industry has
been identified with the help of chemical industry associations and the Ministry of Industry. A
survey of the impact of the CWC on chemical traders is underway. It was pointed out that Italy
has no Schedule 1 facility and only a few Schedule 2 and 3 facilities, subject to declaration.
The chemical industry has been involved in the whole implementation process. Informing
affected companies as well as trial inspections and declarations is planned in co-operation with
the chemical industry associations and the PTS, but has not been conducted so far. Regarding
the ratification process participants have been informed about the expectation that Italy will
deposit its instruments of ratification soon.

i) Japan1

The Chemical Weapons Control Policy Office, acting as the National Authority will be
located within the Ministry of International Trade and Industry (MITI). Its size will be 28 staff
members, who will work in the head office in Tokyo and the regional bureaux of MITI
throughout the country and has a budget of 286 million Yen for 1995. The National Authority
has tried to identify companies, which will be subject to declarations, by seminars, publication
and media work as well as through the co-operation with the Japan Chemical Industry
Association (JCIA). Finally, questionnaires have been sent to over 6000 companies. Due to the
still pending definition of DOCs its is almost impossible to give a precise figure how many
companies, that will be affected by the CWC.
The National Authority started to work on the implementation process of the CWC. This is
done in close co-operation with the JCIA, with which the National Authority published manuals
for inspections and is planning to conduct a ‘Table top Exercise for the facility agreement’.
Further training programmes for escort teams, preparation of trial inspections and a Module 3
training course for OPCW inspector candidates are organised.
Finally, due to the nerve gas attack in the Tokyo subway system in March this year, parts of
the implementation legislation have already entered into force. There is no threshold for
Schedule 1 chemicals.

j) Netherlands2

1 Japan ratified the Chemical Weapons Convention on 15 September 1995.

2 Netherlands ratified the Chemical Weapons Convention on 30 June 1995.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 29

In the Netherlands the National Authority will be located within the Ministry of Economic
Affairs. Its size will be rather small. The main task of the National Authority at the moment is
the drafting of the implementation legislation since the Netherlands ratified the Convention. The
implementation legislation will contain requirements which are stricter than the obligations
under the CWC. It was indicated as an example that no minimum thresholds for declarations of
Schedule 1 chemical will exist for any purposes.

k) Norway1

The National Authority of Norway will be established within the Ministry of Foreign Affairs.
Regarding the implementation process, Norway has finalised its national implementation
legislation, which will enter into force on the same date as the date of entry into force of the
CWC. According to the implementation legislation the statute will supersede all other national
laws. As the main problem for the National Authority the outreach of industry has been
indicated. At the moment a survey is carried out, which is based on a survey of the Australia
Group. Results of the survey have not been presented due to short time for presentation.
Detailed regulation on the collection and distribution of data and on verification by on site
inspections is needed.

l) Romania2

After being a heavily debated issue between the Ministry of Defence, Ministry of Foreign
Affairs and the Ministry of Trade and Industry it was finally decided that the National Authority
will be established within the National Agency for the Control of Strategic Exports and of the
Prohibition of the Chemical Weapons, a specialised organ of the Government of Romania,
subordinated directly to the Prime-Minister of Romania. At the moment it has 6 staff members
and a staff of 11 staff members is envisaged once the Act of national implementation enters into
force. This will occur three months before the date of entry into force of the CWC. According
to the draft Act the National Authority will have the competence to carry out all the obligations
of Romania under the CWC. This includes the power to conduct national inspections to
facilitate the accuracy of the required information before being reported to the OPCW and to
require information regarding scheduled chemicals, which will be collected below the CWC
thresholds. This was done to prevent the possible use of Schedule 1 chemicals for terrorist
activities. In order to organise national inspections in good time the Act contains provisions
which require the submission of data by industry to the National Authority in advance. Besides
drafting the implementation Act the main task of the National Authority so far was to identify
affected companies and obtain information to them. The identification of companies did not
pose a major problem to the National Authority, as the chemical industry is to a great extent
state owned and the emerging private or ”mixed” capital companies have to register with the
Chamber of Commerce and Industry of Romania. Further all exports of chemicals controlled by
the Australia Group requires the approval of the COCOM and Non-Proliferation Directorate of
the National Agency for the Control of Strategic Exports and of the Prohibition. So far only
Schedule 3 and Discrete Organic Chemicals (DOCs) facilities have been identified. The National
Authority put a great emphasis on the information of industry on the obligations under the
CWC and the implementation Act. This was and still is necessary as industry was not involved
in the drafting of the national implementation legislation. The informing of industry is mainly
conducted through seminars, some of them have been organised with the PTS, and
publications. The National Authority publishes since January 1995 a monthly chronicle
informing on the progress of the implementation of the CWC, which is distributed to affected

1 Norway ratified the Chemical Weapons Convention on 7 April 1994.

2 Romania ratified the Chemical Weapons Convention on 15 February 1995.
30 Effective Implementation of the CWC

companies, public institutions and other interested organisation. Further trial inspections as well
as a Module 3 training course for the inspectors are in the planning stadium. The activities of
the National Authority has gained remarkable interest by public and private media and is well
documented. With respect to facility agreements the National Authority has followed the
progress of the negotiations in The Hague, but has not commenced with the work on that issue.

m) Russia

Russia has not yet established a National Authority, but has set up a Presidential Committee
on related issues of chemical and biological weapons conventions, which serves as the National
Authority in the meantime1. The committee is composed by members of the different
governmental authorities, which will be concerned with the CW and BW Convention. So far
the identification of concerned companies has been begun. It will be carried out in close
connection with chemical industry and by means of seminars, publications and the public
media. Further, first thoughts have been given to assistance for companies during routine
inspection and a trial inspection on a facility of unscheduled chemicals.

n) Switzerland2

The National Authority in Switzerland will be established within the Federal Department of
Foreign Affairs. No new authority will be established for that reason. Thus, the Federal
Department of Foreign Affairs will serve as the national focal point and will be the supervising
authority. But the tasks of the National Authority will be divided among different governmental
authorities. The main responsibility of implementing the CWC rests with the Federal Office for
Foreign Economic Affairs, which is part of the Federal Department of Economics. This
includes the granting of licences for production, export and import of scheduled chemicals as
well as the heading of national escort teams during inspections of chemical industry. Further,
this Office is entitled to negotiate the facility agreements with the OPCW. The Ministry of
Defence will be in charge for all issues regarding challenge inspections and military matters.
The NC-Labaratory Spiez, which is an agency of the Department of Defence, will have the
mandate to collect, process, evaluate and check data required under the CWC. The Laboratory
also provides experts to support and advise escort teams and give technical advise in all CWC
related issues. Switzerland for implementing the CWC took the approach of amending existing
statutes rather than implementing a new law. This approach as well as the establishment of the
National Authority within a existing governmental authority is due to the Swiss system of
keeping legislative changes to a minimum. So far provisional legislation (Federal Decision
concerning the Implementation of the CWC) has been approved by Parliament3, but has not
entered into force. This can only be done by a decision of the Federal Council as soon as
required. The federal decision will then provide the legal framework for the issuing of the
relevant ordinances, which will contain the necessary regulations for compliance with the
CWC. The ordinances will be valid until the new Federal Law on the Control of Dual-Use
Goods and the amendment of the Federal Law on War Materials will enter into force. These
two laws will constitute the final legislation for the implementation of the CWC. This allows
that the draft can enter into force, even if the legislative process has not been completed before
the CWC enters into force. The ordinance for the provisional legislation is currently in the
drafting process. The drafting of it poses major problems to the legislative body due to the
complex nature of the Verification Annex to the Convention and the pending decisions in the
negotiation process in The Hague. The finalising of the ordinance is expected by the end of
1 See Presidential Edict No. 314 of 24 March 1995 about ‘Preparation of the Russian Federation for Implementation
of International Obligations in the field of Chemical Disarmament’.
2 Switzerland ratified the Chemical Weapons Convention on 10 March 1995.
3 See Federal Decision concerning the implementation of the CWC, approved by Parliament on 7 October 1994.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 31

1995.
Close co-operation with industry has been established during the drafting process as was
already the case during the negotiation of the CWC. Switzerland has so far not carried out any
specific survey on companies, which will be affected by the CWC. Preliminary figures exist
based on voluntary information and already existing regulations.

o) Sweden1

In Sweden as in many other countries the National Authority will be located within the
Ministry of Foreign Affairs. Regarding the implementation process Sweden has finalised its
national implementation legislation. The legislation has yet not entered into force. Its date of
entry into force will be determined by the Government. Unlike the implementation legislation,
the ordinance for the implementation legislation has already entered into force. The ordinances
regulate the collection of information from industry. Thus, facilities are already under the
obligation to provide data to the National Authority. In the implementation legislation Sweden
requires also more strict declarations than required under the CWC thresholds.

p) United Kingdom

Due to the large chemical industry in the UK it has been decided that the National Authority
will be located within the Department of Trade and Industry. Currently 10 staff members (4
professionals and 6 support) are working within the National Authority. The main tasks are
preparation for declarations, monitoring compliance, inspections and to develop licence
requirements. The latter will be implemented by existing mechanisms. Identification of CWC
affected industry has been conducted in close co-operation with chemical industry associations
and related trade organisations. Further means being used were existing data bases and the trade
press advertising. Outreach to industry for information on CWC obligations has also been
undertaken in co-operation with trade organisations, but was not restricted to them alone. The
National Authority has also used publications and the media to inform industry. Regarding the
preparation of industry for inspection there is no intention of specific preparation since
inspections will occur relatively infrequent for any given facility, whereas the changes of staff
will be fairly frequent. However, it is intended to develop videos and to hold seminars at the
inspection site once notification of an inspection has been given by the OPCW. Unlike private
industry a number of trial inspections, mainly practice challenge inspections, have been
conducted at Government sites. Preparatory work on facility agreements for Schedule 2
facilities has been undertaken including a trial facility agreement exercise The verification of
declared data was indicated as a difficult point. It is intended to check new declarations against
historic data and other accessible data bases. With respect to implementing legislation, the draft
of the British implementation legislation has been finalised. During the drafting process
industry was involved. It is noteworthy that information on Schedule 1 and 2 chemicals will be
required below the thresholds mentioned in the CWC. One of the main difficulties of the
National Authority is the identification of industry inspite of the co-operation with chemical and
related associations, was indicated as well as the planning of the size and equipment needs of
the National Authority. As mentioned above the verification of declared data also poses some
problems to the National Authority.

q) United States of America2

1 Sweden ratified the Chemical Weapons Convention on 17 June 1993.

2 The report on the United States of America is based on the presentation of Mr. Peter Gratton, ACDA; and the
response to the questionnaire by Mr. Michael Walls, CMA.
32 Effective Implementation of the CWC

The main focus of interest in the United States lies at the moment on the ratification progress.
Participants have been informed that President Clinton considers the Chemical Weapons
Convention as a subject of top priority1. The draft implementing legislation of the CWC has
been presented before the Congress, which has appointed one person for all CWC issues.
However the problem remaining is the ratification of the CWC by the Senate. Ratification
before the ratification of START seems to be very unlikely and no date for the ratification of the
CWC has been announced. Due to considerable support by the Executive Branch the US may
ratify the Convention in late 1995or early 1996.
Concerning preliminary work for the implementation of the Convention the figure of affected
companies became a heavily debated issue. Opponents and supporters of the Convention have
put forward figures which range from 25 000 affected companies to 2500 companies. The
Government of the US estimates that about 3 000 companies might be affected by the
Convention. Further information seminars have been conducted by the Chemical Manufacturing
Association (CMA) in co-operation with the US Government for affected companies, as well as
current update of all interested associations and companies on the efforts of CMA regarding the
implementation of the CWC. The primary problem of these seminars was the low attendance,
which might be due to the fact that no legal obligation exists to implement the CWC exists for
US companies. CMA is also involved in a major project on the negotiations of facility
agreements, which shall culminate in guidance materials for affected companies. This project
includes also training for companies to escort international inspection teams. Further field tests
of draft U.S. declaration formats have been conducted as well as 8 national trial inspections.
Finally, it was indicated that the National Authority will be within the Department of
Commerce.

1 The president of the United States of America once again stressed the need for ratification in his speech before the
General Assembly of the United Nations during the celebration of the 50th anniversary of the UN on 22 October 1995.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 33

Second Session: The implementation process in Germany

The need for early ratification of the Chemical Weapons

Convention - A View from the German Foreign Office

Peter von Butler,

Acting Commissioner for Disarmament and Arms Control of the Federal Government

1. This conference in Bad Homburg which deals with the early implementation of the
Chemical Weapons Convention must be seen as an important contribution towards global
endeavours to curb the spread of weapons of mass destruction. In the Chemical Weapons
Convention, which was signed in January 1993, this aim is envisaged in its most radical form,
the complete prohibition of a whole category of horrendous weapons.

2. In recent months several important arms control issues in the field of nuclear weapons
captured our attention, among them in particular
- The indefinite extension of the nuclear non-proliferation treaty in May this year at the NPT
Review Conference in New York, a most important achievement.
- At present the Geneva negotiations on a comprehensive nuclear test ban figure as the
priority topic on the global nuclear disarmament agenda. This agenda also contains other
important issues like the prohibition of the production of fissile material for weapons purposes.
At the same time the Chemical Weapons Convention, which was signed in January 1983,
deserves close attention. Its entry into force and early implementation is overdue. The Tokyo
subway incident and continuing revelations on Iraq's chemical weapons program do confirm
the great concerns about the dangers that are posed by chemical weapons.
The Chemical Weapons Convention is a unique treaty which offers increased security for all
member states through the elimination of an entire category of weapons of mass destruction.
This elimination will be effectively verified. Moreover, this treaty will open up to member states
new prospects for economic and technological co-operation and development - as spelled out in
its article XI - with a view to the peaceful use of chemicals.
3. Germany employed great endeavours to bring about a successful conclusion of the Geneva
negotiations of the Chemical Weapons Convention in 1992. On 12 August 1994, Germany
deposited its instrument of ratification to the Convention, one of the first countries to do so.

This early passage of the ratification and implementation law in the German Bundestag was to
a large degree the result of continuous joint efforts by the German Government and the
representatives of the German chemical industry. The industry was already very actively
involved in the negotiations of the Chemical Weapons Convention in Geneva. Based on
German experience we can say without exaggeration that one of the secrets of our ratification
and implementation of the convention was the excellent and intensive co-operation between
government and chemical industry.
Of course this pre-supposes a good working relationship between all government agencies
concerned, in particular between the Foreign Office and the Ministry for Economic Affairs.
These joint efforts will be mentioned later.
4. Looking at the developments since the Chemical Weapons Convention's signature 2 1/2
years ago I must state that we are very concerned about the slackening pace of the ratification
34 Effective Implementation of the CWC

process. It is impairing the political momentum which is vital for the convention's early entry
into force. Only 35 of the 65 states necessary for the Convention to enter into force had ratified
up to the beginning of September 1995.

Therefore individual countries have to join all their efforts to speed up this process. The
German Federal Government is actively engaged in promoting the ratification process in third
countries. In bilateral meetings the topic is frequently addressed, even at ministerial level. We
also offer to interested states active support in preparation for national implementation.
Furthermore, in order to help the Russian Federation meet its chemical weapons destruction
obligations and to encourage ratification of the Convention, the German Government is co-
operating closely with the Russian Government in the chemical weapons destruction process.
For this project the Federal Foreign Office was allocated a budget of more than 6 million
German Marks in 1995.

5. In September 1994 and in July 1995 the German Foreign Office made two world-wide
demarches with the aim of encouraging governments to ratify the Chemical Weapons
Convention. At the beginning of July Foreign Minister Klaus Kinkel, together with his French
colleague Hervè de Charette, addressed the Foreign Ministers of the United States, Russia and
a number of other states - altogether 23, mainly member states of the Geneva Conference on
Disarmament - which have not yet ratified the Convention, encouraging them to do so as soon
as possible. These activities are to be continued in close co-operation with other partners.
Despite all the efforts of individual countries there can be no doubt that particular
responsibility lies with Russia and the United States as the major chemical weapons
possessors. Their ratification will be a decisive signal and encouragement for many other
countries to speed up their ratification activities.
I am convinced that this conference, which allows an exchange of experience among
representatives from many different countries, will also facilitate the ratification process and
thus the entry into force of the Convention. Let me express our satisfaction at the impressive
preparatory work undertaken at the Organization for the Prohibition of Chemical Weapons in
The Hague. A well-functioning Chemical Weapons Convention will be an important
contribution to the security of all of us.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 35

Implementation Tasks of the German Foreign Office

as the Future National Authority

Christoph Bundscherer,
Foreign Office of the Federal Republic of Germany, Bonn

I. Designation of the National Authority and Preparation for the

Implementation

1. Pursuant to article VII paragraph 4 of the Chemical Weapons Convention each State Party
has the obligation to designate or establish a National Authority to serve as the national focal
point for effective liaison with the Organization and with other States Parties. In Germany the
task of the National Authority will be fulfilled by the German Foreign Office which, in the
Federal Government, is competent for all arms control affairs. Many of the tasks to implement
the Chemical Weapons Convention must be solved before entry into force. It is, therefore,
appropriate that these tasks of preparing the implementation be fulfilled by the same authority
which will be the National Authority after entry into force of the Chemical Weapons
Convention. For this reason, preparing for the implementation of the Convention is also in the
responsibility of the German Foreign Office.

2. The German Foreign Office, although being National Authority as national focal point
according to article VII paragraph 4 of the Chemical Weapons Convention after entry into force,
will not fulfil all tasks in the area of implementation. The control of activities not prohibited
under the Convention (article VI, part VI to IX of the Verification Annex) is exercised by the
Federal Export Office, a lower authority under the Federal Ministry of Economics, which is al-
ready responsible for export controls. The Federal Ministry of Defence will be the competent
authority for the destruction of old chemical weapons dating from the time of the two World
Wars and for the verification measures in the military area. The Federal Ministry of Defence
created its own "Center for Verification Tasks" to conduct military inspections in Germany and
abroad, not only under the Chemical Weapons Convention, but also under other arms control
agreements.

II. Tasks of the German Foreign Office in Preparing the Implementation

of the Chemical Weapons Convention

1. The German Foreign Office already worked intensely for the preparation of the national
implementation during the last years of the Geneva negotiations. Parallel to the progress of the
negotiating process, all respective legal questions were discussed. To this end, regular meetings
took place with representatives of the Ministry for Economics, the Ministry of Defence, the
Ministry of Internal Affairs, the Ministry of Justice and other ministries concerned. Additionally
there were frequent meetings between these ministries and the Chemical Industry Associations
which had been integrated at an early stage into the Geneva negotiation process and, from the
beginning, took an active role in the preparation of the national implementation. This procedure
made it possible that the Federal Government as well as the chemical industry had sufficient
expertise in the area of the Chemical Weapons Convention necessary for the preparation of the
implementation and for the implementation after entry into force.
36 Effective Implementation of the CWC

2. Soon after signing the Convention, the Federal Government began to draft the im-
plementation law. This task, too, was fulfilled in close co-operation with the Chemical Industry
Association. The "Act Implementing the Chemical Weapons Convention" of August 2, 1994
contains regulations empowering the Federal Government to prohibit or restrict foreign trade
with and production, processing, transfer and acquisition of chemicals as far as necessary for
the implementation of its obligations under the Convention. Moreover, the Federal Government
has the right to regulate by statutory order declaration and information obligations and the
obligations to tolerate and support inspections. The law also contains provisions on the
protection of data, on the escort team, on facility agreements and on state liability for damage
caused by members of an inspection team. Finally, the law establishes administrative fines and
penal sanctions. The penal provisions on the prohibited use of chemicals as chemical weapons
fill only a small gap left by the War Weapons Control Act, which already establishes severe
penal provisions against chemical weapons. The penal law in the implementation law was
necessary, however, because the War Weapons Control Act defines as chemical weapons only
chemicals which are listed in a schedule annexed to the War Weapons Control Act and which is
identical with schedule 1 of the Chemical Weapons Convention. The implementation law,
containing only 21 articles, is relatively short and well structured. It contains only regulations
necessary due to constitutional obligations. The German Federal Constitution requires that all
substantial measures implementing political decisions be decided by a formal law passed by
parliament. This applies first of all to regulations which affect individual rights and obligations.
All other details may be regulated by statutory order, if the formal law describes sufficiently the
contents of the statutory regulation. The procedure to draft and pass an implementation law
without solving all detailed questions has put the Federal Government into the position to ratify
the Convention as early as August 1994 and to use the remaining time until the deposit of the
65th ratification instrument to draft the statutory order containing the detailed regulations.

As all rights and obligations concerning the inspection regime are already regulated in the
Implementation Act, the statutory order contains only regulations of activities not prohibited
under article VI of the Convention and parts VI to IX of the Verification Annex on prohibitions,
restrictions and declaration obligations. All essential questions concerning this statutory order
have been discussed among the ministries concerned. In order to finally pass the statutory
order, however, several outstanding issues have to be solved at the Preparatory Commission in
The Hague. Unfortunately the actual negotiation process in The Hague shows little progress,
and it doubtful whether these questions are solved unless substantial progress in the world-
wide ratification process is achieved.

3. Besides drafting the legal basis for the implementation of the Chemical Weapons
Convention, the German Foreign Office has to prepare itself for its future role as National
Authority. In co-operation with the competent Ministries of Economics and for Defence, the
necessary measures have to be taken to be in the position to submit initial declarations no more
than 30 days after entry into force of the Convention, to submit annual declarations, to be
prepared for inspections and to destroy all old chemical weapons during the ten-year time
frame.
4. The Foreign Office also co-ordinates training courses for foreign inspectors held by
personnel of the Federal Ministry of Defence. Last year a training course on non destructive
evaluation techniques was held. This year a trial inspection will be offered. The political aim of
these measures is to support other countries in the preparation of their implementation measures
and, consequently contribute to an early entry into force of the Convention.

5. Members of the Foreign Office form the German Delegation to the Preparatory
Commission of the Organization for the Prohibition of Chemical Weapons in The Hague. The
German Delegation participates actively in the negotiations on all implementation issues still to
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 37

be solved. The delegation is reinforced by representatives of other ministries and institutions

when need arises in discussions in The Hague.

6. The German Foreign Office undertakes all possible efforts to promote the ratification
process in third countries. In bilateral meetings the topic is frequently addressed, even on
ministerial level, the Federal Government encourages other countries to ratify the Chemical
Weapons Convention. On a bilateral level, we offer to all States active support in the
preparation of national implementation. In order to facilitate the fulfillment of chemical weapons
destruction obligations of the Russian Federation, and to encourage ratification of the Conven-
tion, the German Government co-operates closely with the Russian Government in the
preparation of chemical weapons destruction. For this project the Foreign Office was allocated a
budget of 6.5 million German Marks this year. Representatives of the German Foreign Office
participate frequently in regional Seminars on the national implementation of the Chemical
Weapons Convention organized by the Provisional Technical Secretariat of the Preparatory
Commission, using their presence for bilateral consultations and efforts to encourage
governments for early ratification.

The German Foreign Office made two world-wide demarches in September 1994 and July
1995 with the aim to encourage governments to ratify the Chemical Weapons Convention: At
the beginning of July, Federal Foreign Minister Klaus Kinkel, together with his French
colleague de Charette, addressed the Foreign Ministers of the United States, Russia and several
other States which have not yet ratified the Convention encouraging them to do so as soon as
possible. The German Foreign Office will keep on taking all efforts to foster the ratification
process in other countries.

III. Implementation Tasks after entry into force of the Convention

1. After entry into force of the Convention, the German Foreign Office will be the National
Authority serving as the national focal point for effective liaison with the Organization and other
States Parties as established under article VII paragraph 4 of the Convention.

The Foreign Office will transmit to the Organization the data collected by the Federal Export
Office and the Centre for Verification Tasks of the Armed Forces. It will accept inspection
requests from the Organization and transmit our own inspection requests to the Organization.

The Foreign Office will also have the task to send national observers to challenge inspections
taking place abroad on German request.

In relation to domestic authorities, the German Foreign Office will be the central focal and co-
ordination point for the implementation of the Convention. It will accept declarations collected
by the Federal Export Office and the Centre for Verification Tasks of the Armed Forces,
transmit inspection requests from the Organization to the Federal Ministry of Economics and the
Federal Ministry of Defence respectively and, if necessary, send members of the escort team to
inspections in the military or civil inspection objects in Germany.

Members of the German Foreign Office, possibly together with experts from other ministries,
will form the Delegation to the Organization for the Prohibition of Chemical Weapons.

After entry into force of the Chemical Weapons Convention the German Foreign Office will
continue to encourage other States which will not have done so to ratify the Convention in order
to reach universality of the Convention.
38 Effective Implementation of the CWC

IV. Conclusion

This overview of the tasks of the German Foreign Office has shown that this ministry, which
is responsible for disarmament issues within the Federal Government, has a central function in
preparing the implementation and in implementing the Chemical Weapons Convention as
Germany's National Authority. However, all these tasks can only be fulfilled in close co-
operation with other authorities like the Ministry for Economics and the Ministry of Defence, as
well as in co-operation with the Chemical Industry Association. The implementation of the
Chemical Weapons Convention is a team work, which can only succeed if all institutions
concerned co-operate closely.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 39

National Implementation of the Chemical Weapons

Convention

Dr. Manfred Ruck,

Federal Export Office Germany

The Federal Export Office is the responsible National Authority for the implementation of the
industrial part of the Convention. The duties are the collection and aggregation of declaration
data, the granting of licenses for export and imports of listed chemicals and all the duties
concerning the carrying out of the inspections. The international inspection teams will be guided
by the national escort team from the point of entry to the facility and back to the point of exit.

The implementation staff presently are three persons. After entry into force it is planned to
develop two sections, one dealing with licences and declarations, the other dealing with
inspection procedures.

The BAFA was chosen because its responsibilities are export controls and its experts are
working on all international regimes such as Non Proliferation Treaty, Missile Technology
Control Regime, Australian Initiative, New Forum and items of the Nuclear Suppliers Group.
It is also responsible for administrative tasks in the framework of the German War Weapons
Control Act. That means there is a great expertise and experience in handling sensitive goods.

The implementation group has been working since early 1993 and was involved in the
implementation process of the chemical weapons administration act as well as the respective
decree. A lot of work has been done to install all provisions foreseen in the Convention and the
office does its best in the implementation process. It contacts industry via the Association of the
German Chemical Industry (VCI) and also contacts other associations involved, to get as much
assistance as possible and to inform industry about measures of the implementation and to
check whether industry is compliant with these measures. Also unorganised companies are
contacted to give to them all assistance possible too.

Until now we do not have exact information as to how many companies are affected by the
measures of the CWC Schedules. First estimates are about 7 companies dealing with Schedule
2 chemicals, about 10 companies dealing with Schedule 3 chemicals and about 700 companies
dealing with Discrete Organic Chemicals (DOCs) and PSF chemicals. But we do not know how
many production units are involved in these companies.

For a final estimation of affected companies we plan to develop a questionnaire. The

appropriate time to involve industry is directly after 65 member States have deposit their
instruments of ratification. This questionnaire must be simple, short and understandable. It is
planned to make a short information paper of two pages maximum and the questionnaire of one
page.

As I understood the intention of this meeting it is to point out to problems found in the
implementation process in our country. We found four areas of major concern.

1. Proper Definition
40 Effective Implementation of the CWC

We have some problems with the definition of DOCs. Regarding all scheduled chemicals we
are talking of about 6.4 billion of organic chemicals in total, from which carbon hydrogen
compounds and explosives are exempted. The number of commercial explosives is about 300.
So we are talking about roughly 6.2 billion of chemicals to be administrated under the
Convention!

The Convention talks about ‘discrete organic chemicals’ except ‘carbon oxides’. This
exemption may lead to misunderstandings because the proposed exemption of carbon monoxide
and carbon dioxide, which are inorganic compounds by definition, is not well described.
Companies could understand that ‘organic carbon oxides’ such as alcohols, aldehydes, ketones
and others to be exempted. If these companies, which make these compounds, do not declare
their activities we could run into problems if we want to punish such mistakes. A clever lawyer
may find an expert who states, that the before mentioned chemicals may fall under the
exception. No court case can be won by the government, if the definition is not clear enough.

As a special example I want to mention about 20 cases of illegal exports which took place
from 1983-1992 and which came to court in Germany. From these 20 cases the German
Government (German Export Control Office) lost 18 because there were no proper definitions.
One of the most public case was the export of chemical plants for the production of precursors
to Muthana in Iraq in 1982-1984 by a German company. The export of these plants was legal
until August 1984, when Germany introduced new regulations to prohibit the exportation of
chemical plants for such purposes.

The reason behind this was a former COCOM rule which existed since the early 50’s, when
COCOM Regime was founded and which stated that an item was covered by the international
agreed list only if it was specially designed for one purpose and only usable for this single
purpose. This rule was specially applied to all munitions items. This regulation means, that dual
use plants which can be used for many purposes e.g. the production of pesticides or normal
chemicals and also the production of chemical weapons have not been covered under this
regime and during this time.

If the Imhausen case, the export of a chemical plant to Rabta, would have been investigated
only on the basis of then existing export regulations there probably would have been no
punishment. The ‘mistake’ of the owner of the company was not to pay taxes of an amount of
roughly 200 billion German Marks. This could have been punished with about 10 years
imprisonment. Especially this example shoes how important proper rules are for the
administration of an important regime such as the Convention.

A minor example is the exemption of explosives. There can be another misunderstanding

regarding the question: ‘when has a producer of explosives to declare’. I will give an example:
He produces about 50.00 tonnes of explosives a year and produces also a small amount of
other discrete organic chemicals. The question is, has he to declare if he produces more than the
threshold of 30 tonnes PSF or 200 tonnes DOCs or has he to declare if he produces only one
kilo of the above mentioned chemicals. My view is, that declarations have to be made only in
the cases, when the company produces the other chemicals above the threshold. But other
views are possible and for a proper understanding we need clarification.

2. Overlapping of regimes

The listed chemicals of the Convention are covered by other international agreements too. The
toxins covered under Schedule 1 are also covered under the Biological Weapons Convention.
Some of the precursors listed in Schedule 2 and Schedule 3 are also covered under the regime
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 41

of the Australian Group. Other special chemicals are covered by the nuclear regime PT or NSG
respectively because they contain isotopes.

In Germany we have a national regulation concerning the production, storage, transport,

import and export of war weapons called the ‘War Weapons Control Act’. This act has an
appendix which contains a list of items covered under this rule. Concerning the number of
chemical weapons there is a small difference, because the coverage of the German rule is more
extensive.

Concerning the Australian Group, there was a statement of the Australian Ambassador in
Geneva 1992 on the further activity of the group in the future, when the Convention enters into
force, which led to a compromise and convinced many countries to accept the Convention.
During the negotiations in The Hague there was a change relative to the former compromise.
That change led to many statements in expert meetings and in plenaries by countries affected by
the regulations of the Australian Group.

What are the effects of export controls under the Australian Group regime in Germany? To
clarify this, we undertook a study concerning the years 1991,1992 and 1993. The Australian
Group regime covers 54 chemicals (17 of them are not covered in Schedule 2 or Schedule 3).
These 17 chemicals generated the largest number of licences. We found that roughly 3000
licenses per year have been granted for exports mainly to non-OECD countries.

Under the condition that about 100 countries become Member States the number of licenses
to be given to Non-Member States would dramatically drop down to about 300 per year. That is
a clear vote for the Convention. It would help us to concentrate our control activities on more
important fields and to avoid superfluous administration.

Concerning the export controls under the nuclear regimes chemicals containing Deuterium
and Tritium are already covered. Some of the scheduled chemicals under the Convention have
been produced as deuterated or tritiated isotopes. The reasons are normally structural
clarifications made by NMR Spectrometry or other research purposes. These isotopes are
normally so expensive, that they will never be of interest for purposes prohibited or controlled
by the Convention. We need a decision to restrict controls of chemicals which appears under
more than one regime to the appropriate one.

3. Declaration Handbook

The Declaration formats of the existing Declaration Handbook are simply a collection of all
requirements of declarations to be done for all scheduled chemicals. In my view some
improvements are necessary to avoid redundant reporting of data. The National Authority is
missing the precise description of data sets which have to be sent to the PTS. No National
Authority can develop a proper working system, compatible with the PTS- system, if they do
not know these measures.

A second remark concerns the excellent presentations of the IAEA and EURATOM during the
first communication workshop when they presented a well working system which could be
adapted in a similar way for declarations to be made under the Convention.

Especially the coding system for different activities to be declared under NPT- provisions
must give some security if declarations get lost or get into wrong hands. Persons who do not
have the keys cannot imagine what to do with such a paper. I have worked with this system for
more than 15 years and appreciate it very much. I hope, that these remarks made it evident why
42 Effective Implementation of the CWC

we (the National Authorities) have to ask for some improvements. And I am willing to offer
some help if it is asked.

4. Number of scheduled chemicals - Beilstein search

When we started with the implementation powers in Germany we thought about the number
of chemicals to be controlled under the Schedules. If there is a single chemical mentioned - no
problem because it is clear but if we have a family, we do not know, if we are talking about 5,
10, 100 or more chemicals. Especially chemicals with one P-C bond and a more or less
unlimited number of substituants are a candidate for such a search. So the Beilstein Institute
was asked to make the search how many chemicals are on this schedule. The search was done
in the Beilstein Data Base containing about 6,5 billion organic chemicals. Beilstein found more
than 12,000 chemicals synthesised (published in the literature). Some of the chemicals have
been produced at least one time and in quantities to ensure the chemical structure and to describe
the physical properties. I do not know, whether all these chemicals including very rare
isotopes, radioactive material and extremely expensive elements, are all candidates for
declaration under the Convention.

But if we have no limits for export controls to Non-Member States, we have to grant licences
and we have to know all of the chemicals. And if after three years after entry into force the
export of Schedule 2 chemicals to Non-Member States is prohibited, the National Authorities
need this information for their licensing procedures. I presented this data base, which is stored
on a CD-ROM to the PTS and proposed the establishment of a PTS data base of all the relevant
chemicals, so that all Member States will have the same information.

In Germany we found some more problems of minor importance or interest during the
implementation process, while some of them relying to our nationals laws and are not specific
to other countries. I wanted to present only those of major importance at this time.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 43

Appendix 1

Overlapping of Regimes

CWC SCHEDULE 1 SCHEDULE 2 SCHEDULE 3

WWCA WWCL/CW* - -

(New Forum) 0007* - -

Austr. Group - - 1C350

BWC + - -

NSG # # #

*) Nr. of carbons of ester group not restricted to ten

+) toxins: Ricin and Saxitoxin
#) schedule chemicals containing Deuterium, Tertium, or (uranium, Plutium, Thorium and
other fissile material
44 Effective Implementation of the CWC

The role and function of the Verification Centre of the

Federal Armed Forces as Part of the National Authority

Jürgen, Mihm, LTC

Federal Armed Forces Verification Center, Geilenkirchen

The Federal Armed Forces Verification Centre (FAFVC) was founded in 1991, it is
responsible for conduct of all activities related to all arms control treaties and agreements,
including CWC.

The FAFVC is under the command of the Federal Ministry of Defence (FMOD).

Verification measures and activities pursuant to the CFE Treaty or under the OSCE/Vienna
Document 1994 are continuously performed. Inspections in accordance with the INF Treaty are
conducted in very small numbers now.

The Treaty on Open Skies as well as the CWC have not yet entered into force, but FAFVC is
making extensive preparations for the implementation of the Treaty and the Convention.

Head of FAFVC is its director. Subordinate to him are a deputy director and chief of staff,
the legal advisers, the Headquarters Section, the Central Implementation Tasks Division,
Division II - CFE and INF, Division III - Open Skies and Division IV - OSCE and CWC. A
total of approximately 190 servicemen and 60 civilians are employed FAFVC.

As early as 1994, Germany declared its renunciation of the production, stockpiling and use of
CW and, thus, has no CW in its custody. However, Germany has OCW the major part which
was, and is still found on the premises of the former research, production and test facility of
World Wars I and II near the town of Munster, located approximately 100 km south of
Hamburg, during the systematic search of ground of today’s training area.

These OWC would not be subject to the CWC provisions if they were not recovered from the
ground. But since we are very much interested in using the entire training area for the training
of soldiers, the complete recovery of OCW, the removal of contaminated soil and an
environmentally safe destruction of such weapons is utmost importance.

For these reasons, an explosive ordnance disposal facility is operated at Munster which is
tasked with search, storage and emptying of OCW (the OCW found in Germany are usually
”duds”, i.e. they still contain explosives and fuses); in addition there is a high-temperature
incineration plant for chemical warfare agents. Currently, a soil washing unit with a connected
electric-arc melting furnace is under construction; this unit transfers arsenic-containing warfare
agents into insoluble glass like end products which are stored in shut down mines.

The following main tasks are assigned to the CWC Implementation section (see Annex 1).

The CWC Implementation section comprises 4 servicemen, including two senior officers
(with a university degree in chemistry), one officer and one senior NCO. All of them have
received training as NBC Defence Specialists.
In addition, 6 CWC escorts, who accomplish this task as secondary assignment, undergo
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 45

basic and advanced training so that approximately 10 escorts are available all the time.

The basic and advanced training program consists of 4 courses: (see Annex 2)
Main contents of the courses:

a) General arms control course: (see Annex 3)

b) CWC Seminar: (see Annex 4)
c) course ”Protection from the effects of chemical warfare agents” : (see Annex 5)
d) course ”Introduction to OCW” : (see Annex 6)

All of the special courses b) to d) are dealing exclusively with OCW!

In order to support the training activities for OPCW inspectors, Germany offered to conduct
three Module courses:
a) Module 2 course (together with USA): ”Non-destruction evaluation of CW” :
(contents see Annex 7) this course is certified by the OPWC
b) Module 2 course ”demilitarisation of OCW” (contents see Annex 8)
c) Module 3 course ”Trial inspection” (contents see Annex 9)
The CWC Implementation Section regularly participates in the expert group meetings on:
* old chemical weapons
* inspection procedures, and
* training of OPCW inspectors;
- conducts informal meetings at FAFVC;
- gives presentations on the CWC implementation in the area of responsibility of the Federal
Armed Forces;
- prepares the documents needed for the pre-inspection briefing and the facility agreements
and is tasked with the overall responsibility to prepare a video recording on ”Pre-inspection
briefing for initial and routine inspections”;
- prepares and conducts a CWC trial inspection with international participants in the 43rd
calendar week, and
- prepares and conducts the second training session for CWC escorts.

Annex 1
Main tasks of the CWC section
• escort services for OPCW inspection teams during all routine and challenge inspections
conducted in the areas of responsibility of the Federal Armed Forces and stationed forces
and, if necessary, in the areas of responsibility of the Federal States;
• review, summary and in-time submission of all declarations pursuant to the CWC within the
area of responsibility of FMOD;
• preparation of a proposal to initiate requests for clarification or a challenge inspections if a
sufficient amount of well-founded information on possible violations of the provisions of the
Convention by other States Parties has been gathered; and
• preparation and conduct of measures related to the CWC and the military sphere as support
for OPCW, Foreign Office, FMOD and other national agencies.
46 Effective Implementation of the CWC

Annex 2
• general arms control course;
• CWC Seminar
• course ”Protection from the effects of chemical combat agents”
• course ”Introduction to old chemical weapons in Germany”

Annex 3
Main contents of the general arms control course
• contents of the following arms control treaties and agreements:
* CFE Treaty
* OSCE
* Vienna Document 1994
* Treaty on Open Skies
* CWC
* INF Treaty;
• orientation on the ground and from the air (helicopter)
• taking of photographs and video recordings of armaments and equipment items during
inspections; and
• actual conduct of a CFE inspection (as inspector and escort).

Annex 4
Main contents of the CWC Seminar
• objectives and negotiation history of CWC
• ratification and implementation of CWC
• structure and contents of CWC
• implementation of CWC in Germany, especially in the area of responsibility of FMOD
• declaration, verification and destruction of chemical weapons (especially old chemical
weapons)
• application of the verification regulations as laid down in the Verification Annex
• conduct of routine and challenge inspections and
• application of the provisions of the Confidentiality Annex.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 47

Annex 5
Main contents of the Course ”Protection from the effects of chemical warfare agents”
• types, characteristics, properties and effects of chemical combat agents (produced before
1946)
• protection from the effects of chemical combat agents
• detection of chemical combat agents and
• decontamination of chemical combat agents.

Annex 6
Main contents of the Course ”Protection from the effects of chemical warfare agents”
• types, characteristics, properties and effects of chemical combat agents (produced before
1946)
• protection from the effects of chemical combat agents
• detection of chemical combat agents and
• decontamination of chemical combat agents.

Annex 7
Module 2 course
(Non-destruction evaluation of CW)
• neutron-activated spectroscopy
• neutron-induced spectroscopy
• measurements of hydrogen concentrations
• ultrasonic measurements.

Annex 8
Module 2 course
(Demilitarisation of old chemical weapons)
• inventory-making / accounting of OCW
• X-raying of OCW
• methods for demilitarisation of OCW
• sample-taking and analysis
• destruction of OCW.
48 Effective Implementation of the CWC

Annex 9
Module 3 course
(Trial inspection)
• POE procedures
• briefing
• facility agreement
• inventory-making / accounting
• X-raying of OCW
• methods of demilitarisation of OCW
• sample-taking and analysis
• destruction of OCW
• inspection report
• POE procedures.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 49

Effective Implementation of the Chemical Weapons

Convention (CWC) in Germany and the Involvement of
the German Chemical Industry Association

Dr. Detlef Männig

Chairman of the German Working Group against chemical weapons

Introduction
The German Chemical Industry Association (Verband der Chemischen Industrie / VCI) has
around 1650 members and by that represents over 90 per cent of the companies involved in the
production of chemicals in Germany. The chemical industry belongs to the most important
industries in Germany in terms of its share of the gross industrial product, employment and
foreign trade. In 1994, the chemical industry had a total turnover of 175.2 billion DM and
employed 570,000 persons.
Cooperation with the German Government during the Geneva negotiations
With regard to CWC issues there exists a long tradition of cooperation between the German
government and the chemical industry as represented by the VCI. This cooperation began
during the negotiations in Geneva in the Conference of Disarmament (CD), when VCI was
invited to support the German delegation to the CD in Geneva. The VCI input into the
negotiations was coordinated through its Working Group against chemical weapons.
Implementing legislation in Germany
Germany was one of the first countries with a significant chemical industry to ratify the
CWC. At an early stage, the German chemical industry was invited to provide input into the
draft legislation. This was thanks to an excellent working relationship with the authorities,
including the German national delegation to the Preparatory Commission (PrepCom) for the
Organization for the Prohibition of Chemical Weapons (OPCW) in the Hague. This has led to a
manageable, workable and efficient legislation, the Chemical Weapons Convention
Implementation Act, without compromising in any way the fundamental goals or detailed
requirements of the CWC.

The same can be said with regard to the current drafting process of the decree legislation,
implementing the framework regulations of the Implementation Act, e.g. the scope, contents
and frequency of industry declarations. This draft is discussed, among other issues, at frequent
meetings of the various federal Departments involved in the implementation process with
experts from the chemical industry. However, as we all know, the final contents of the decree
legislation will depend on the outcome of the work done at The Hague, pending a final
agreement on a number of issues, in particular low concentration, discrete organic chemicals,
national aggregate data, etc.
Supporting the work of the PrepCom and PTS in The Hague
At afore-mentioned meetings with chemical industry experts, many controversial issues
concerning the chemical industry are discussed. Support of the work done in The Hague can
thus be done through the national delegation, through written comments and occasional
presence in The Hague, e.g. during the Expert Group meetings. Most of the chemical industry
representatives are chemists, and the secretary of the VCI working group against chemical
50 Effective Implementation of the CWC

weapons is an international lawyer. However, if necessary, experts in other fields (e.g. civil
lawyers, computer specialists) can be provided by the chemical industry as required. At this
point, it should be emphasized that the worldwide chemical industry has repeatedly made clear,
that it does not see technical problems regarding compliance with the obligations of the CWC,
sound technical solutions are available.
Providing information to German companies
Contrary to the work done e.g. in Japan, the UK and the USA, so far, no brochures have
been distributed or seminars conducted by the VCI. The ratification of the CWC coincided with
a severe recession and restructuring in the German chemical industry. At VCI, we came to the
conclusion that it would not be advisable to start those activities with the date of entry into force
of the CWC still uncertain. Instead, we tried to continually increase awareness by numerous
publications, that the existence of the CWC will affect industry once it enters into force. Two
recent publications (in the aftermath of the Tokio subway attack) were made available to the
participants of this conference. In addition, the Executive Board of VCI and the Federal
Assosciation of Industry (Bundesverband der Deutschen Industrie / BDI) have been briefed
about the Chemical Weapons Implementation Act. In 1993 VCI sent a questionnaire to its
member companies which was prepared in cooperation with Professor Bothe of the Institute of
Public Law at Frankfurt University. This activity provided provisional information about the
number of VCI member companies which might be affected by the CWC, in particular with
regard to reporting obligations. Furthermore, VCI also strongly supports the preparation and
distribution of a draft information sheet by the Federal Export Control Office.
Training
VCI offers a M3 training course for future inspectors. We feel that it is in our best interest,
that these inspectors are well-trained, and qualified with a good knowledge of the chemical
industry. Initially, three plant sites with schedule 2 and 3 plants will be opened to the training
programme.
Closing remarks
Chemical industry has consistently voiced interest in the speedy entry into force of the CWC.
The activities presented here hopefully proved that this is not mere lip service, but that we do
the best we can to provide support wherever needed. We thank the organisers of this
conference in Bad Homburg for having provided us an opportunity to present some of our
concepts and congratulate them for having brought together such a fine group of experts on the
CWC.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 51

Chemical Weapons Convention - Preparatory measures

taken by Hoechst AG

Dr. Hans Kohl

Head of Transport Safety, Safety Department, Hoechst AG

I. Introduction

The prohibition of chemical weapons encompasses besides the scheduled products (schedule
1 - 3) a minute control on all chemical precursors and by-products that are involved in any
given production process. Moreover, attention has to be paid to those research programmes
dealing with the synthesis of novel compounds. In order to meet with the requirements of the
CWC, one prerequisite for the installation of reporting and control mechanisms within the
Hoechst organisation will be the intimate knowledge of the complex organisational structure
and profound information on the reliability of recording tools comprising the complexity of
synthetic chemistry.
Hoechst - as well as many other chemical companies - undergoes at the moment a dynamic
organisational restructuring of its activities. Thereby a distinct emphasis is laid on
decentralisation with the aim to set up independent separate units for its activities. Due to this
process, certain deliberations are useful for the successful compliance with the obligations as
required by the CWC and the respective national implementation legislation.

Firstly, with regard to the declaration obligations Hoechst will have to fulfil, extensive use
will be made of all reporting systems already established within the company. Within Hoechst
AG. these reporting systems are the following:
- export control documentation;
- production data banks belonging to the Health-Care-, the Agro-Vet-, Chemicals-, Fibres-
and Polymers- Units;
- Dangerous Substances Register according to the German Dangerous Substances-Act (§ 16
(3a) Chemikaliengesetz/ Gefahrstoff-Verordnung).

Using these existing resources will avoid extra costs for a new, additional reporting system
as well as the usual implementation problems caused by a new system and thereby ensure, that
all data subject to declaration will be available. The different sources of data documentation will
be advantageous in providing a sufficient basis for cross-checking on the validation
(plausibility) of the company’s declarations.

Secondly, clear-cut instructions for all activities that are mandatory for the effective execution
of the requirements of the CWC and the national implementation legislation have to be
developed.

Thirdly, unequivocal manuals for the conduct of inspections have to be compiled. This shall
avoid time-consuming - and perhaps embarrassing - negotiations with the inspection teams on
the production site. The measures, as mentioned above, shall foster a uniform policy regarding
all CWC obligations within the companies of Hoechst.
Fourthly, CWC co-ordinators (Inspektionsbeauftragte) will be installed with advisory
functions in all important technical centres of the company (this includes the parent company in
Frankfurt- Hoechst as well as all Hoechst-plants in Germany). So far 12 co-ordinators have
52 Effective Implementation of the CWC

been nominated. They will form the platform for all measures to be taken with respect to the
compliance with CWC obligations. However, it must be stressed that still some effort is
necessary regarding the identification of experienced people which can act as technical co-
ordinators.
At last, these co-ordinators shall be trained to cope with the organisational and technical
requirements of inspections. Again, this shall ensure a uniform application of all CWC related
obligations.

II. Projects of Hoechst for fulfilling the obligations of the CWC

For the time being, projects have mainly to be undertaken in the area of points two, three and
four.
Regarding the clear-cut instructions for all activities, it is intended to write a handbook for the
company containing all information/ activities necessary to comply with CWC related
obligations in detail. The handbook will be introduced within the general frame of Quality
Assurance (Control functions as a segment of TQM). However, before starting to write the
handbook further clarification from official sources regarding the magnitude and depth of the
information/ activities is necessary.

As far as the manual for inspections and training for co-ordinators is concerned, an in-house-
training will be performed in the second quarter of 1996 on the basis of the VCI1-proposals for
the training-programme of inspectors (module 3). At the moment, it is still under discussion,
whether an expert team of Hoechst employees will be set up to regularly accompany
inspections. However, it is obvious that the co-ordinators will play an important role to steer
inspection activities in order to ensure the pertinent interests of the company. It is therefore
necessary that direct communication links among the co-ordinators will be established. The
central co-ordination of all activities regarding inspections will be effected in Frankfurt-
Hoechst. This includes also the screening of incoming printed information from various
sources and its dissemination to the co-ordinators within the company of Hoechst and other
affiliates.

III. Closing Remarks

At the end of my presentation, I want to address the decisive question of acceptance of all
intended measures as outlined above.
As regards Hoechst AG three factors will predominantly determine the effective realisation of
the intended measures; (1) cost effectiveness, (2) the installation of experienced co-ordinators
and (3) the elaboration of clear manuals for declaration requirements and inspection activities.
They have to be as detailed as possible in order to achieve a format of standardised operating
procedures for both declarations and inspections.
The structure of Business Units of Hoechst operating on an international basis invites for
harmonisation of all efforts with respect to the fulfilment of CWC.
A regular exchange of experience and information covering all practical facts of CWC on VCI
- and CEFIC2 - level will be of significant assistance to all member companies.

1 Verband der chemischen Industrie (German Manufactures Association).

2 European Chemical Industry Council.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 53

The Chemical Weapons Convention from the view of

chemical trade

Peter Steinbach
German Association of Chemical Trade and Distribution

Ladies and gentlemen,

Thank you, Prof. Bothe for the opportunity to expound on the situation and position of the
German Chemical Trade in connection with the Chemical Weapons Convention.

To begin with, let me start with a few remarks concerning the structure of chemical trade. The
German Association of Chemical Trade and Distribution - founded in 1903 in Berlin -
represents the chemical trade linking producers and endusers of chemical products in three
major specialized fields:

stockkeeping and distribution of chemicals, using own facilities,

foreign trade of chemical commodities and distribution of specialities,
distribution of laboratory and fine chemicals.

Using their own stockkeeping facility the distributors supply products to a large number of
commercial and industrial customers and users of chemical products within an area of
approximately 150 km reach from its location. The assortment of products contains primary
commodities like acids, solvents and chemical solids as well as special products. The foreign
traders of commodities and distributors of specialities are engaged in international trade
activities or act as exclusive agent of producers from all over the world taking care of supplies
on a national or international scale, sometimes even regional distributors are their customers.
The distributors of laboratory and fine chemicals deliver smaller quantities of high quality fine
chemicals to industrial laboratories and laboratories of universities and schools, test institutes
and public offices.
In the whole, the chemical trade is a small part of the overall trade economy. About 80
companies involved in distribution and stock-keeping and about 110 export and speciality
traders produce a turnover of about 13 billion DM.
On European level our association is member of FECC - the European Federation of
Chemical Trade -; more or less the little sister of CEFIC, with which FECC has a very close
cooperation. Tomorrow H. v. Heck tells you more about this organisation. Last but not least
we meet twice a year our colleagues from the United States, Canada and some countries more
to discuss international issues.

What practical influence does the convention have on the chemical trade ?

1. The primary objective of the convention is the worldwide registration and inspection of all
production-capabilities involving chemical weapons and their precursors. This will not interfere
with the trade because chemical trade does not involve traditional production with reactors,
production-synthesis, separation, or purification. Therefore there is no need for routine
inspections. It could be possible however, that companies which have their own stockpiling
capabilities can be subject to challenge inspections.
54 Effective Implementation of the CWC

2. A trading house is concerned from the convention when a company is dealing with
substances from schedule 2 or 3, especially in the import- and export areas of business.
For substances listed under schedule 3, the convention states the following information that
have to be included in the documents of trade dealing with non-signees of the convention

the chemicals may not be used for prohibited purposes

the chemicals may not be re-transferred
the types and quantities of chemicals involved
the end use of the chemicals
name and address of the enduser.

The same information are asked for substances under schedule 2 for an appointed period of
time of 3 years after the convention is in force. After these 3 years, all trading with schedule 2
substances with states not having signed the convention will be prohibited.

3. Relevant for all chemical trading houses will be the registration of all transfers concerning
substances of schedule 2 and schedule 3. Every trader will have to register the amount of each
chemical exported and imported as well as the countries the chemicals will be exported to or
imported from.

Fulfilling his duties out of the convention the trader is in a different situation as to the
producer of chemical products, whose stock of all chemicals - more or less - is registered and
his program known. The trader is - with certain restrictions - able to sell any chemical available
in the world to any of his clients. That means that any trader will have to be informed and
instructed on the guidelines and restrictions of chemicals involving such restrictions
extensively.

These conditions deal with all substances mentioned in the Convention with the restriction
that chemicals of schedule 1 have practically no importance for the chemical-trade-business.
Ladies and gentlemen - these are the formal obligations that are set in the Convention. The
spirit of the Convention obligates each chemical trading company to take these obligations
seriously and even to go further to ensure that in general no chemicals may be used for illegal
purposes.
Our participation in the Responsible Care-Program of the chemical industry will intensify our
efforts in this area.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 55

Second Session1: Presentation of the German Programme

on CWC implementation

One background paper was presented by the SIPRI-Saskatchewan-Frankfurt Project on ‘The Tasks of the
National Authority under the Chemical Weapons Convention’.

Summary and Discussion

The session examined how Germany chose to implement the CWC i.e., responsible
authorities, what they have done up to date as concerns the CWC and what has still to be done
before and after the entry into force (EIF) of the Convention.
The Ministry of Foreign Affairs (MFA) is the National Authority (NA) and the national focal
point with the Organisation for the Prohibition of Chemical Weapons (OPCW). The MFA
speakers underlined the importance of the co-operation between the Federal Government and
the chemical industry to make speedy ratification and implementation possible. All NA tasks
will have to be solved in co-operation with other ministries and authorities. The MFA will co-
ordinate the data from the Federal Export Control Office (Bafa) and the Verification Centre
Geilenkirchen as concerns the information to be declared to the OPCW. The German
implementation act includes detailed provisions on declarations and inspections. Training
courses (trial inspections) will proceed already this year. Germany will: (a) assist Third World
countries to sign and ratify the CWC; (b) give expert help to other countries; (c) assist in the
destruction of Russian CW (by economic and technical help); (d) participate in Regional
Seminars (and also in bilateral discussions with representatives from other countries to assist
ratification); and (e) induce Member States to the Conference on Disarmament (CD) to ratify the
CWC as soon as possible, especially USA and Russia.
Discussion followed on topics such as how Germany would accomplish national inspections
practically as well as challenge inspection both in Germany and abroad. The ‘on call’ system
was discussed. The ‘on call’ system implies that when certain problems occur during an
inspection, the national inspection team can call an expert from the country and request help
from who is closest to the site and who has the training and the knowledge.
A presentation from the Verification Centre in Geilenkirchen followed. The Centre handles
military aspects of national implementation i.e., Schedule 1 and old chemical weapons (OCW).
The Centre, which is under the command of the Ministry of Defence, will provide the necessary
data for Schedule 1 and OCW declarations. Germany has OCW from World War I and II which
will be destroyed safely. There are about four officers from the Verification Centre who will be
involved in future inspections. They will have training in arms control in general (CFE, Open
Sky, CWC etc.), the CWC explicitly (all the national implementation tasks), protection against
chemical weapons (CW) and CW in Germany (history, technology, inspections etc.). There
will be three training courses open to international experts. The Verification Centre prepares for
inspections (initial and challenge) and for the preparation of Facility Agreements (FA). A
question was raised as to what other countries are doing in regard to the preparation of escort
teams and in training courses.
Next, the Federal Export Control Office (Bafa) gave a presentation. Bafa is responsible for
the information/data gathering on Schedule 2, 3 and other chemicals and facilities. Bafa is under
the supervision of the Ministry of Economics. Problems which Bafa has recognised so far: (1)
DOC is defined in a way that can be misunderstood. The scope of the DOC definition is too
broad and it is hard to understand what is not included in that definition. An agreed definition is
necessary; (2) the Declaration Handbook is too complicated; and (3) Export Controls — how to

1 Report by Patricia Radler, Resaerch Assistant, CBW Project, SIPRI

56 Effective Implementation of the CWC

make them work under both the CWC and other treaties. The existing control is the Australia
Group list and maybe there will be parallel control in the future with the CWC export controls.
Approximately 12 000 chemicals fall under the schedules in the CWC if the families under
Schedule 2 are totally included. From these 12 000 chemicals ca. 11 000 chemicals have been
prepared and described. It is not certain whether the NA should control all these chemicals and
how. Under the Australia Group control list there are ca 100 licences issued annually and under
Schedules 2 and 3 it is estimated that there would be about 3 000 licences annually. During
1992-94 Bafa had 272 applications for licences which fell both under the Australia Group list
and the CWC schedules. 94 per cent of all applications were for chemicals which were not on
either lists.
The presentation from Bafa raised a lively discussion. The given information is generally
known and does not, for example, include name of companies involved. Some questions were
raised: what are the preparations Germany has made for production declarations and how will
they verify them? What are the competencies of Bafa to verify collected information? Further,
whether one single regime will cover export controls and will the DOC list be expanded or
reduced.
The representatives from Hoechst gave a presentation on how its facilities (national and
international) will adapt to the new CWC regime. The presentation was very interesting e.g.,
what an individual company must do to implement the CWC and it raised lots of questions and
spirited discussion. Hoechst is indeed affected by the CWC as it deals with production,
consumption and processing as well as with export and import of chemicals now controlled
under the Convention. The ISO 9 000 system and the CWC provisions have to be implemented
which led Hoechst to reconstruct its organisation. The ISO 9 000 system implies that the
organisation and responsibilities have to be more decentralised. When implementing the ISO
system Hoechst made use of that reconstruction so that they could at the same time implement
the obligations under the CWC. The concept for Hoechst was worked out with help from the
VCI. Hoechst’s affiliated international companies will be informed of what will come forward
in the future as concerns the CWC. The concept of Hoechst was not tailor-made for them, it is a
part of the VCI approach and could be used by other companies as well. A network of experts
(scientific and technical people and co-ordinators) was set up to figure out how to fulfil
obligations under the CWC. Direct effective communication with co-ordinators is necessary. A
handbook with a uniform standard operating procedures for CWC activities is needed to make
CWC implementation successful and has been worked out. It includes information on
declarations, inspections and training of co-ordinators. Hoechst is also setting up a data bank of
all activities where chemicals relevant to the CWC are used. However, there will always be a
risk that intermediates may slip through the data bank system. The data bank information
models will not cover all intermediates and there is a danger of a lacuna. There are ca. 2 000
companies included in the data bank.
The VCI underlined that, thanks to the level of co-operation between governmental
authorities, industry and the VCI, national implementation legislation was drafted smoothly.
The VCI has 1 600 members and includes 90 per cent of the chemical industry. Clear
definitions from The Hague on problems such as low concentrations and aggregate national
data is necessary within near future. When these definitions are settled the VCI will request an
Ordinance on detailed provisions on these topics from the German Parliament. Up till now the
VCI can only give general information about the CWC and the obligations upon the industry to
their members. They presently offer Schedule 2 and 3 plants training on their obligation as well
as training co-ordinators. VCI will organise an international Module 3 training course. The
system of a common behaviour was discussed. An ‘ethic code’ should be developed for all
members of the VCI to avoid actions prohibited under the CWC (an informal information
system; formalisations are not possible for legal reasons).
The Association of Chemical Traders in Germany reported that the object of the CWC will
not interfere with trade. They also gave information on the distribution of chemicals—Schedule
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 57

2 and 3 chemicals; export and import. Additionally, there was information on the distribution of
fine chemicals. There is a trade programme for Chemical Traders (but not for Schedule 1
chemicals) to help members to avoid Article I violations and in general, to establish a special
code of conduct within the Chemical Trade Association. All companies affected by the CWC
will receive information, help etc., on how to meet their obligations under the CWC because
there is no company which is not member of any of the trade or manufacturer associations.
58 Effective Implementation of the CWC

Third Session: Declaration Requirements

National Implementation of the Chemical Weapons

Convention in Sweden

Dr. Thure Svensson

KemI, National Chemicals Inspectorate, Sweden

In the following twenty minutes I am going to report how we in Sweden have implemented
the Chemical Weapons Convention (CWC), so far, and how we already have done the Initial
Declaration regarding our chemical industry on the national level. As you well know Sweden
ratified the CWC very early, already on the 17th of June 1993. This very speedy ratification of
the CWC was an unanimously policy statement of the importance of this international con-
vention by the Swedish parliament and government.

Legislation

The necessary national legislation with regard to the CWC was approved by the parliament
during the spring session 1994. The new laws and ordinances or mostly changes and
amendments to already existing laws and ordinances, for example regarding inspection under
the Convention, penal code on activities in violation of the CWC, immunities and privileges for
inspection team, will enter into force when the government so decides, which means when the
CWC enters into force. However, the two laws and ordinances relating to declarations have
already entered into force (EIF 1 July 1994).

Sweden does not possess any chemical weapons and Sweden will therefore mainly be con-
cerned with the provisions governing the chemical industry i.e. Article VI and, possible,
challenge inspections under Article IX. In Sweden we have two laws with subsequent ordi-
nances regulating the handling of items that can be used military: the Law (Ordinace) on war
materials and, the Law (Ordinance) on strategic products (dual-use items).
The chemicals on Schedule 1 in the Convention are in Sweden defined as "war material" and
falls of course under the law on war materials and ordinance on war materials. These acts
contains a general prohibition of production and export of Schedule 1 chemicals, unless
permitted by the government. Production for research, medical or pharmaceutical purposes and
export of Schedule 1 chemicals can be permitted by the government on a case-by-case basis but
have to be declared annually.

Production of Schedule 1 chemicals in a total quantity of less than 100 grams per facility and
year for research, medical or pharmaceutical purposes are exempted from permit and
declaration. However, all other handling of Schedule 1 chemicals at such a facility, without
quantity thresholds, has to be declared annually. The declaration requirements in the ordinance
also covers chemical products, mixtures, etc. containing any Schedule 1 chemical, without any
threshold with regard to "low concentration".
The provisions with regard to the chemicals on Schedule 2 and 3 in the Convention and with
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 59

regard to the facilities producing discrete organic chemicals (DOC) have been amended to the
Law on strategic products and the Ordinance on strategic products. These acts contains
requirements with regard to permit for export of Schedule 2 and 3 chemicals, obligation for
companies to provide declaration of Schedule 2 and 3 chemicals and of DOC, and the right of
the government, or a designated authority, to verify the accuracy of the information provided in
the declarations.

The declaration requirements in the ordinance also covers chemical products, mixtures, etc.
containing any Schedule 2 or Schedule 3 chemical, without any threshold with regard to "low
concentration. Also there are no specific quantity thresholds with regard to the handling (pro-
duction, processing, consumption, import and export) of scheduled chemicals, except the term
"professionally use" which excludes research laboratories, etc. The quantity threshold for
declaration with regard to production of DOC is 10 tonne. "Production" as well as "production
by synthesis" also includes production by any biological or biologically mediated process.

The domestic legislation in Sweden commission the national authority to collect some more
information than the one stipulated in the Convention. Now it is time to leave the legislation and
have a look at the practical implementation on the national level.

National Authority

The government has not yet appointed any specific authority as the National Authority.
Instead the Ministry of Foreign Affairs probably will be designated as the focal point in relation
to the OPCW. That means that all information to OPCW and from OPCW will be channeled
through the Ministry of Foreign Affairs. The responsibility for the co-ordination of the
implementation of the Convention will reside within the Ministry of Foreign Affairs. The
practical work of implementing the Convention on the national level will be done by a couple of
governmental authorities.

So far the government have appointed the War Materials Inspectorate (a unit within the Mini-
stry of Foreign Affairs) as the authority for collecting declarations from facilities handling
Schedule 1 chemicals and supervising and controlling activities and declarations regarding such
chemicals. The government also have appointed the National Chemicals Inspectorate (KemI) as
the authority for collecting declarations from all facilities handling Schedule 2 chemicals,
Schedule 3 chemicals and facilities producing DOC, as well as supervising and controlling ac-
tivities and declarations regarding these chemicals.

Industrial declarations

In Sweden we started very early with the question "how" to collect the needed information
from the chemical industry. The first main task was of course to identify all companies that in
some way are covered by the Swedish declaration requirements.

We did not make any trial declaration survey, because we were convinced that a trial survey
would give little or no information, but mainly because we at the Chemicals Inspectorate have a
Products Register. According to our Chemical Products Law every producer of any chemical as
such or as a chemical product, mixture, etc., and, every company in Sweden which import a
chemical as such or as a chemical product, mixture, etc., have to notify the Products Register
annually regarding identification-data of the company and identification-data of all chemicals,
chemical products, mixtures, etc., that they produce or import.
60 Effective Implementation of the CWC

All these companies have also declared to the Products Register the composition of all
chemicals, chemical products, mixtures, etc., that they produce or import, on a chemical sub-
stance level. From what I just said you can see that we at the Chemicals Inspectorate, through
our Product Register, have a very good knowledge about the chemical industry and companies
importing chemicals and about the chemicals that they produce or import.

We started early in 1994 with the planing of the so called "Initial Declaration". We decided to
collect the needed information from the concerned companies in a two-step procedure. In the
first step we made the final identification whether or not the company in any aspect was covered
by the declaration requirements, and in the second step we collected detailed data from the
concerned companies.

As stated above the law and the relevant ordinance for declarations did enter into force on the
1st of July 1994. As a result of this, we in August 1994 sent out 4 different declaration forms
(Step 1 of the Initial Declaration) to approximately 400 companies, that from data out of our
Products Register potentially might be covered by the declaration requirements.

On these forms the companies were asked to answer "yes" or "no" whether or not they in any
aspect were handling any of the chemicals that are listed on Schedule 1, 2 or 3 in the
Convention, as such or as a component of a chemical product, mixture, etc., and whether or
not they produced more than 10 tonne of DOC and/or PSF-chemicals. They were also asked to
give the name of a contact-person at the company, sign the forms and than send back the forms
to the Chemicals Inspectorate before the 15th of October 1994.

All companies that answered "yes", 205 companies, received in January 1995 a new set of
declaration forms (Step 2 of the Initial Declaration). On these forms the companies should
supply the Chemicals Inspectorate with the detailed data and information according to the
Swedish declaration requirements, and send back the forms to the Inspectorate before the 15th
of February 1995.

Today we have received all the declarations with detailed data from the 205 companies. Also
we have checked up the accuracy of the given information in the declarations from almost all of
the 205 companies. This has been done by personal visits at almost one third of the companies
and their different plant sites or plants and for the residue of the companies this check up has
been done by other means.

The results from this Initial Declaration of the chemical industry in Sweden regarding the
calendar year 1994 shows that 31 companies are handling Schedule 2 chemicals, 175 com-
panies are handling Schedule 3 chemicals, 33 companies are producing unscheduled DOC and
7 companies are producing unscheduled PSF-chemicals. Some of these companies are of
course handling both Schedule 2 chemicals, Schedules 3 chemicals and/or producing DOC.

Regarding the Schedule 2 chemicals we in Sweden do not have any company producing
Schedule 2 chemicals. The above mentioned 31 companies are either processing, consuming
and/or importing Schedule 2 chemicals. Two of these companies are consuming more than 10
tonne per year of a Schedule 2 chemical.

Regarding the Schedule 3 chemicals we do have a couple of companies producing Schedule 3

chemicals. Most of the 175 companies do import a Schedule 3 chemical and process or
consume that chemical in their business activity. However, about 140 of these companies do
only import triethanolamine or chemical products, mixtures, etc. containing triethanolamine and
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 61

process or consume that chemical in their business activity.

At present we are updating the received information. The 205 companies have to supply
information to the Chemicals Inspectorate before the 15th of September 1995, on a specific
form, whether or not compared to their Initial Declaration they have changed their handling of
Schedule 2 chemicals and Schedule 3 chemicals in any way so far during this calendar year
1995, i.e. started handling of any new scheduled chemicals, ceased the handling of any
scheduled chemicals or considerably changed the quantitative data. The companies also have to
supply similar information regarding planned changes for the calendar year 1996. The
companies have to give a "yes or no" answer and, if "yes" they are requested to supply detailed
information.

Later on this fall we are going to check up through our Products Register if there are any new
companies that potentially might be covered by the declaration requirements. If so, they will
have to supply an initial declaration to the Chemicals Inspectorate before the 15th of January
1996.

Finally, all of the 205 companies will have to supply a complete update of their Initial
Declaration with regard to the calendar year 1995 (annual declaration) to the Inspectorate before
the 15th of January 1996. To sum it up. Sweden has, regarding the calendar year 1994 and will
have in the beginning of next year regarding the calendar year 1995, all the information needed
for the declaration of the chemical industry requested under the CWC, on the 28 different forms
that you can find in the OPCW Declaration Handbook.

Concluding remarks

In Sweden we did start very early with the implementation of the CWC and with the time-
consuming work of collecting declarations (initial declaration) from the chemical industry. The
advice is, start early, because you will need much more time than you ever believe. For this
work you will need at least 6 to 12 months, of course depending on the manpower you put in.

The Swedish chemical industry and the companies, concerned or not concerned by the
Convention, have been extremely cooperative and good regarding industrial declarations. No
problems and no problems, what so ever, regarding confidential business information (CBI).
However, some companies, usually small ones, have been rather late in replying and sending
back the declaration forms. We had to remail some of them once or twice.

As stated above, the National Authority in Sweden is collecting a little more information from
the chemical companies than is stipulated in the Convention. We have got the full understanding
for that from the companies. The inclusion of "biological and biologically mediated processes"
under the term "production" and "production by synthesis" have not increased the number of
DOC plant sites, except for two small companies/plants producing ethanol by fermentation and
distilling the produced ethanol-solution.
However, we from the National Authority in Sweden would like to see a quick, easy and
international solution of the question "low concentration", i.e. regarding declaration of
chemicals, chemical products, mixtures, etc., containing a Schedule 2 chemical and/or a Sche-
dule 3 chemical in low concentration. Setting a 3% level for "low", whereby declarations are
not needed, would exclude from declaration about 20% of the 175 companies concerned with
Schedule 3 chemicals in Sweden. Such a level would ease the burden on the National Authority
as well as on the chemical industry substantially, without changing the intentions of the CWC.
62 Effective Implementation of the CWC

From the National Authority's viewpoint, I can say that we can cope with the OPCW
declaration requirements and the present and/or future versions of the OPCW Declaration
Handbook. We do not see any problems of using the 28 or more different forms for submitting
a complete industrial declaration from Sweden. We have not used your forms on the national
level, because first of all they have to be in Swedish, so we created our own.

Finally, let me finish with a request to the OPCW/PTS to speed up the work regarding the
Chemical Handbook. The National Authorities in all member states really need such a
handbook giving the name and CAS-number of all chemical substances belonging to the
families of chemicals listed in Schedule 2 and also in Schedule 1, and actually used in industry,
in order to give the OPCW an accurate and complete industrial declaration.

Thank you for your attention.

 Conference Proceedings, Bad Homburg 8 - 10 September 1995 63

How to ensure compliance with the CWC:

A companies view

Dr. Peter Plant,

ZENECA

I. Introduction

The view presented here is an individual one based on the experiences of a multinational
company and in particular those of its Agrochemicals Business. Zeneca was previously a part
of ICI, a long established significant chemical company, but which demerged some two years
ago to create a totally separate and independent entity (Zeneca) representing the Pharmaceuticals
Agrochemicals and Specialities Business. Thus, we have an $ 8bn sales business organised
into the three segments above and including 85 main manufacturing sites and 20-30 research
centres in about 40 countries worldwide. The company is organised as a main board which sets
overall strategy policy and standards throughout, and the business units that operate largely
independently. For example, manufacturing strategy - where to manufacture a particular
product - will most likely be decided at business unit level. However, in some cases, the larger
manufacturing sites are involved in production for more than one business, sometimes even in
shared plants on a common plant site. Thus, the Company has not only a national problem of
implementing the requirements of the CWC, but an international one as well. The question is
therefore how to deal with the CWC - vertically by business units, by business sites, separate
national reporting or some centralised system?

The conclusions reached by Zeneca are described below, with emphasis on ensuring
compliance, together with the underlying logic.

II. Establishment of compliance with CWC requirements

One needs to recognize that the requirements of the CWC are not unique for the chemical
industry. With the possible exception of nuclear plants, the chemical industry is the most
regulated industry in the universe! There are laws on the health and safety of the workforce,
production and disposal of effluent, safety of the products to the user and to the public,
transport, labelling, noise ... the list seems endless. Regulations can be international (e.g.
CWC), regional (e.g. based on European Union Directives) or national (and then differ from
country to country). Even in the restricted area of export controls we have chemical weapons,
biological weapons, dual use good, prior informed consent, sanctions (UN and national),
Montreal Protocol on ozone depleting substances, etc. From a company’s point of view,
especially from the perspective of a main board demanding certain standards are met, it is vital
there are clear procedures for compliance with the law - the result of a breach could not only be
costly in terms of penalties but the public relations impact could be distasterous. Note, these
clear policy statements are no difference for CWC than in other areas (e.g. there will be proper
payment of taxes). The first priority therefore is to devise and get agreed an appropriate policy
statement at the highest level. This has been done in Zeneca, and it is agreed policy inter alia not
to produce chemical weapons, not to sell precursors in cases where there is a risk of diversion
to CW use, to adhere to various codes of practice, to report suspicious enquiries etc.
A feature of a company policy statement is that it requires practical action plans to be
developed and very importantly that progress in implementing the policy is audited.
64 Effective Implementation of the CWC

III. Implementation of policy within the company

Policy is implemented by a ”letter of assurance” system. This requires the CEO of each of the
business units to make a positive statement of compliance (or to highlight deficiencies) on a
regular basis. The CEOs in turn will clearly seek comfort from his subordinates and require a
similar letter, and so on in a cascade through the organisation. The audit process then ensures
that everyone, according to level, is properly dischargeing their responsibilities and further, that
these are understood and relevant to the overall policy. It can be seen that this system forces
allocation of responsibility - if you are asked to give assurance and do not know where to go to
get the facts you will rapidly clarify priorities tend to get resolved at an early stage. How does
this work at the detail level? This is considered next.

IV. Internal Compliance Mechanism

To unravel the question of who does what, it is helpful to follow a four step logical sequence:

1. What is the law?

2. How does it affect business?
3. Who is involved? then
4. Action plan - what do we do about it?

a) What is the law?

In theory, this is simple. In the United Kingdom, we have had circulated a Draft of the
Chemical Weapons Bill. This, or its successor after Parliamentary approval is the law.
However, the object of the Bill is primarily to grant appropriate powers to government to
implement the CWC. Thus, it describes, in considerable detail, the penalties for making
chemical weapons or for giving false declarations, the role of the National Authority, diplomatic
immunity for inspectors of the OPCW, powers of the police to search properties etc. It does
not, however, provide much detail of the reporting requirements of the CWC and as such is not
much help to someone unfamiliar with the Convention (the company legal department for
example). But there has been a widespread communication from the Department of Trade and
Industry (the National Authority) in the form of a discussion document which gives much detail
of reporting and inspection obligations. The disadvantage of this is that it was circulated
possible 18 months from entry into force and perhaps because of this did not create the sense of
urgency required to stimulate detailed company planning. Indeed, important practical issues,
such as the definition of low concentration, have yet to be agreed. Nevertheless, with the aid of
the above, and the CWC itself if necessary, it is possible to define what is the law.

b) How does it affect the Business?

Here we run into problems of technical descriptions. Ask a responsible person (perhaps a tax
accountant) if we make a chemical with a very complex name (and scheduled product names are
very user-unfriendly) anywhere in the world and there will probably be a puzzled look followed
by panic. ”I do not know” is an unacceptable answer. But the letter of assurance system
described above empowers a search throughout the company for those who can answer the
question. Again, since it is a top down approach, it will penetrate to even the most confidential
research project. A key factor to bear in mind is that the CWC does not only deal with
production - processing and consumption may also need reporting. Early feedback from
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 65

industry suggests that this aspect is not being emphasized. Thus, we now have established
where in the world the company handles scheduled products.

c) Who is involved?

This will be company specific. Clearly some functions will be involved - plant site managers,
purchasing people, export clerks etc., but assessment of individual needs may throw up some
surprises, e.g. it may need an analytical chemist to note that the raw material for ink production
is indeed thiodiglycol although it is bought as a trademarked speciality. ”Who signs letters of
assurance” can then be linked with ”who knows the detail”. In Zeneca, this is familiarly known
as the ”go to jail list” and the ”expert advisors list”.

d) Action plan

The above describes a logical way in which a company can devise procedures to ensure
compliance. But there is also an external face to the CWC. There needs to be a limited number
of contacts with the National Authority. This provides the route whereby changes in the law are
communicated, practical details can be arranged in a consistent manner (debating Facility
Agreements) and so on. At least it answers the question of who the Nation Authority phones
when it hears of an inspection in 48 hours time! In Zeneca, this role logically falls to the Head
Office where there is already close collaboration with government on similar issues.

V. Inspections

Finally, some short remarks on inspection issues. Following the steps above, we know what
the law is - if you have a schedule 2 plant, you will receive an inspection at some time; we
know it affects our business - we have some such plants; we know who is involved - the site
manager. We are working on the detailed protocol needed to receive an inspection at these
plants. One important feature will be to assist in deriving facility agreements, and here an
understanding of business, commercial and technical aspects of confidentiality is clearly
significant. We are concentrating on schedule 2 plants; the chances of a repeat inspection of a
schedule 3 plant (where a facility agreement would be beneficial) are considered remote and
hence the lower priority. As regards challenge, I trust that it should be apparent that Zeneca is in
full compliance with the Convention and suggest that such an inspection would be a waste of
resources!

VI. Conclusion

The CWC has many features in common with the many other regulations already dealt with
by the chemical industry. In devising procedures to ensure compliance with the CWC Zeneca
has drawn on experience with other legislation and has adapted the cascade of responsibilities,
letters of assurance, and audits used elsewhere. Note that dealing with such issues is a core
competence of any reputable chemical company; we do it often, it is our job, we are good at it!
What does industry want from the PTS? There are two issues that are holding up our planning.
We need to have a reasonably good idea of the date of entry into force of the convention. And
isn’t it time we had a definition of low concentrations?
66 Effective Implementation of the CWC

Convention Requirements for Chemical Industry

Declarations1

Donald C. Clagett, PhD

Head Industry Operations Branch
Provisional Technical Secretariat
Preparatory Commission for the Prohibition of Chemical Weapons

Background and Objectives

1. The Convention on the Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on their Destruction (CWC) is a unique agreement among Nations
for a number of reasons including its direct involvement with and requirements for world
chemical industry. The requirements for chemical industry treaty compliance include
declarations of its activities with chemicals specified in the Schedules of Chemicals in the
Chemical Weapons Convention, subjection to routine on-site inspection of its premises (or any
other site within the inspected State Party) under the verification regimes and the possibility of
challenge inspections at any chemical industry site regardless of its declarability under the
provisions of the Convention. The object of this paper is to address chemical industry
declaration obligations under the Convention from the points of view of the National
Authorities of the States Parties to the Convention and the Technical Secretariat, substantive
issues in relation to chemical industry declarations including low concentrations, biochemical
and biologically mediated processes, discrete organic chemicals (DOCs) including DOCs
containing the elements phosphorus, sulphur and/or fluorine (PSFs), aggregate national data on
scheduled chemicals, castor bean processing plants, past production of Schedule 1 chemicals at
facilities having capacity above 1 tonne per year for purposes not prohibited by the Convention,
the draft OPCW Declaration Handbook, and implications of the current status of its work on
Convention implementation.

Declaration Requirements from the Point of View of National Authorities

Introduction

2. Chemical industry is required to provide to National Authorities information on scheduled

chemicals produced, imported and exported. Additionally, Schedule 2 chemicals that are
processed and consumed, facilities and plant sites that conduct certain chemical operations have
to be declared. Other discrete organic chemicals (DOCs) must also be declared. The Schedules
of Chemicals are available in the Convention and will not be presented here. Suffice to say that
the Schedules reflect many but not all of the specific chemicals and chemical genera that have
historically been chemical weapons agents or precursors to these agents. In principle, the risk to
the Convention associated with a chemical increases as one goes from Schedule 3 to 2 to 1.
DOCs as such are considered to pose no particular risk to the Convention, but DOC production
facilities are considered relevant given their potential to produce chemical warfare agents.
1 Paper presented at the
Conference on Effective National Implementation of the Chemical Weapons Convention
Bad Homburg, Germany, 8-10 September 1995
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 67

Within each of the schedules the detail of declarations is in proportion to the perceived risk the
chemicals themselves pose to the Convention. In the following are outlined the declaration
requirements and the production, processing, or consumption levels of activity that will trigger
possible declarations.

Schedule 1 Chemicals and Facilities

3. The national aggregate amount of all Schedule 1 chemicals on the territory of a State Party,
or in other places under its jurisdiction, or in areas belonging to some other State's territory yet
under the first State Party's control, and irrespective of whether kept in storage or located in
equipment or elsewhere, and also irrespective of who is actually possessing the chemical(s),
this amount may not exceed one tonne at any given time. This sets the upper limits on how
much of any Schedule 1 chemical can be produced. In fact, if the aggregate quantity per State
Party to the Convention is at one tonne then no additional production may take place until some
of this one tonne stock has been destroyed, consumed or transferred to another State Party. In
any case, no more than one tonne of Schedule 1 chemicals may be produced in any given
calendar year. It should be noted that this one tonne aggregate amount is for purposes not
prohibited by the Convention and does not include amounts of Schedule 1 chemicals that are
chemical weapons proper - either in weaponized or unweaponized context.

4. Production data must be declared for the single small scale facility (SSSF), if any, that is
allowed in each States Party to the Convention. An SSSF may have a maximum annual
production of up to one tonne per year of Schedule 1 chemicals. Production data must be
declared for Schedule 1 chemicals for the facility producing Schedule 1 chemicals for protective
purposes, e. g. Schedule 1 chemicals produced to support States Parties' work on chemical
weapons protection gear and equipment. Schedule 1 chemicals for protective purposes may be
produced at one other facility whose production is limited to 10 kg per year.

5. Production data must be declared for Schedule 1 chemicals for facilities producing
Schedule 1 chemicals for research, medical, and pharmaceutical purposes (but not for protective
purposes). Each facility may have an aggregate annual production of up to 10 kg per facility per
year.

6. Production of Schedule 1 chemicals of up to 100 g per year in facilities other than at an

SSSF or where production is accomplished for protective purposes need not be declared.

7. Transfers of Schedule 1 chemicals are allowed within a State Party and between States
Parties for research, medical, pharmaceutical or protective purposes. No transfers may be made
to non-States Parties to the Convention. Any transfer of Schedule 1 chemicals between States
Parties must be declared in advance through the National Authority to the Technical Secretariat.

Schedule 2 Chemicals and Plant Sites

8. Production, processing and consumption data must be declared for plant sites producing,
processing or consuming Schedule 2 chemicals in excess of thresholds specified in the
Convention. This data will be compiled by the National Authority of the States Party and
declared to the Technical Secretariat when production, processing or consumption of Schedule
2 chemicals exceeds Convention specified threshold quantities. Aggregate national data on
production, processing, consumption, export and import of Schedule 2 chemicals must also be
declared. The sub-divisions of the Schedule 2 chemicals and their corresponding declaration
thresholds are as follows:
68 Effective Implementation of the CWC

(a) for those Schedule 2 chemicals in Schedule 2, Part A designated with an asterisk the
declaration threshold is 1 kg per year;

(b) for all other Schedule 2 chemicals in Schedule 2, Part A the declaration threshold is 100
kg per year; and

(c) for all Schedule 2 chemicals in Schedule 2, Part B, the declaration threshold is one
tonne.

9. The amounts of Schedule 2 chemicals imported and exported must be reported to the
National Authority which will declare the State Party's aggregate quantities to the Technical
Secretariat. These declarations will match aggregate quantities of each chemical with the identity
of the countries involved in the export and/or import transactions. It is not clear at this time as to
what extent the import or export of Schedule 2 chemicals in mixtures and solutions will have to
be declared as part of the national aggregate figures.

Schedule 3 Chemicals and Plant Sites

10. Production of Schedule 3 chemicals in excess of 30 tonnes per chemical per year must be
reported by plant sites to the National Authority which will in turn make a plant site related
declaration to the Technical Secretariat. The aggregate national production per Schedule 3
chemical must also be accumulated and declared by the National Authority.

11. The amounts of Schedule 3 chemicals imported and exported must be reported to the
National Authority which will declare the State Party's aggregate quantities to the Technical
Secretariat. These declarations will match aggregate quantities of each chemical with the identity
of the countries involved in the export and import transactions. As in the case of Schedule 2
chemical imports and exports, it is not clear at this time to what extent, if any, the import or
export of Schedule 3 chemicals in mixtures and solutions will have to be declared as part of the
national aggregate figures.

Unscheduled Other Discrete Organic Chemicals (DOCs)

12. Plant sites that produce one or more DOCs whose total annual production quantity is in
excess of 200 tonnes per year must provide this aggregate production data in ranges to the
National Authority for declaration to the Technical Secretariat. For plant sites producing PSF
chemicals, each in excess of 30 tonnes per year, both the number of PSF plants within the plant
site and the production range for each plant must be declared.

Summary

13. As can be seen from the foregoing, the declaration obligations of chemical industry in
relation to the Convention are conceptually specific. As such, once a National Authority and the
various chemical industry operations have identified what needs to be declared, the actual
declarations should not prove to be a very great burden for chemical industry. One expert from
industry estimates that with computer assisted on line accounting availability, the typical
chemical plant site will need to expend less than one man day per year on declaration
requirements.

14. Two additional considerations need to be pointed out here. Firstly, some of the specific
items related to declarations, such as low concentration streams, castor bean plant, etc. have not
been agreed upon by the Commission, a fact which has implications for National Authority pre-
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 69

entry into force (EIF) planning. Secondly, the initial, annual and change declarations by
industry to its National Authority must be planned so as to allow the National Authority
sufficient time to meet the Convention specified time lines which will be outlined in the
following section of this paper.

Declaration Requirements fROm the Point of View of the Technical Secretariat

Declaration Requirements

15. It needs to be emphasised that all official contacts concerning chemical industry in States
Parties must be with the official agency of the State Party in question. No direct contact, except
during inspections at chemical industry facilities, between chemical industry of any Member
State and the Technical Secretariat will occur. Thus, the chemical industry declaration
requirements for industry noted above in relation to chemical industry obligations to National
Authorities have, from the standpoint of the Convention, the same factual data content as that
provided by the chemical industries to the National Authorities. However, the Convention
requires certain timelines to be met by National Authorities for initial, annual and change
declarations.

16. All initial declarations must be made to the Technical Secretariat not later than 30 days
after EIF of the Convention or 30 days after a State Party has acceded to the Convention if it
does so after EIF. Annual declarations for the previous year will be made within 90 days after
the end of the calendar year representing that declaration. Sixty days before the next calendar
year declarations of expected activities will be declared. Changes in declarations for Schedule 1
facilities will be declared by the State Party 180 days in advance of the anticipated change,
transfers of Schedule 1 chemicals to/from other States Parties will be notified 30 days before
shipment. Changes in the activities at Schedule 2 and Schedule 3 plant sites will be declared by
the State Party 5 days in advance of the anticipated changes. The following tables provide a
capsule summary of these timelines.
 70 Effective Implementation of the CWC

Declaration Timelines
17. Tabular Synopsis

Initial Annual Annual Declarations

Declarations : Declarations Declarations on Changes
EIF + x days Previous Year : Anticipated Changes (CH)
and other Year End (YE) Activities: - x days
provisions + x days Beginning of
Year (BY) - x
days
Schedule 1
Chemicals
Transfer n.a. YE + 90 n.a. Transfer -
30**
Production
SSSF EIF + 30 YE + 90 BY - 90 CH - 180
(New Facility -
180)
Other Facilities EIF + 30 YE + 90 BY - 90 CH - 180
(New Facility
-180)
Schedule 2
Chemicals*
Producers EIF + 30*** YE + 90 BY - 60 CH - 5
(PS)
(P) EIF + 30*** YE + 90 BY - 60 CH - 5
(C) EIF + 30*** YE + 90 BY - 60 CH - 5
Processors EIF + 30*** YE + 90 BY - 60 CH - 5
(PS)
(P) EIF + 30*** YE + 90 BY - 60 CH - 5
(C) EIF + 30*** YE + 90 BY - 60 CH - 5
Consumers EIF + 30*** YE + 90 BY - 60 CH - 5
(PS)
(P) EIF + 30*** YE + 90 BY - 60 CH - 5
(C) EIF + 30*** YE + 90 BY - 60 CH - 5
Importers/ EIF + 30*** YE + 90 - -
Exporters
at Plant Site
#
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 71

Initial Annual Annual Declarations

Declarations: Declarations Declarations on Changes
EIF + x days Previous Year : Anticipated Changes (CH) -
and other Year End + x Activities: x days
provisions days Beginning of
Year (BY) - x
days
Schedule 3
Chemicals*
Producers EIF + 30 YE + 90 BY - 60 CH - 5
(PS)
(P) EIF + 30 YE + 90 BY - 60 CH - 5
(C) EIF + 30 YE + 90 BY - 60 CH - 5
Other
Chemicals
DOC Producers EIF + 30 YE + 90 - -
(F)
(C) EIF + 30 YE + 90 - -
PSF EIF + 30 YE + 90 - -
Producers (F)
(C) EIF + 30 YE + 90 - -

Remarks:
Year : Calendar Year
* Declarations are also required for the past CW related activities.
** Transfer can be made only to another State Party and only for research, pharmaceutical or
protective purposes.
*** Declarations are required if a plant site which produced, processed or consumed
Schedule 2 chemicals during any of the previous three calendar years.
# : Producers/processors/consumers which are engaged in import/export activities have to
make initial and annual declaration for the import/export activities of the previous year by EIF +
30 and YE + 90, respectively. No declaration is needed for anticipatory import/export activities
including changes for the activities.
Abbreviations
PS : Plant Site, P : Plant, F : Facility, C : Chemical, EIF : Entry into Force of
the CWC,
SSSF : Single Small-Scale Facility, DOC Producers : Discrete Organic Chemicals Producers
PSF Producers : Producer of DOC chemical containing the elements phosphorus, sulphur or
fluorine.

2 . Requirements for Exporters and Importers

Schedule 1 Chemicals:
(1) Transfer can only take place to another State Party and only for research, medical,
pharmaceutical or protective purposes.
(2) No transfer to a third State Party.
(3) Transfer is subject to pre-notification requirement for both States Parties concerned and to
a detailed annual declaration.

Schedule 2 Chemicals:
(1) From 3 years after EIF, transfer can take place between States Parties only.
(2) During the 3 years interim period, the State Party transferring the chemical(s) shall require
72 Effective Implementation of the CWC

an end-use certificate for transfer to non State Party .

Schedule 3 Chemicals:
(1) For transfer to States not Party to the CWC, each State Party shall require a certificate
stating the transferred chemicals shall only be used for purposes not prohibited under the CWC.
(2) Data for national aggregate of import and export may be requested by a National
Authority.

3 . Thresholds (<)
Schedule 1 Chemicals: No obligation (except for : 100g/year/facility
protective purposes)

Schedule 2 Chemicals: "*" in Schedule 2, part A : 1 kg/year

Other Schedule 2 , part A : 100 kg/year
Schedule 2, part B : 1 tonne/year

Schedule 3 Chemicals : 30 tonnes / year

Unscheduled discrete organic chemicals (DOC) : 200 tonne/year (for

total DOCs)

Unscheduled PSF-chemicals : 30 tonne/year per

chemical

4 . Limitations
Schedule 1 Chemicals Total < 1 tonne/at any given time/State Party
Single Small-scale facility : Volume of reaction
vessel <100 litres
Protective purpose : 10 kg/year/ at one
facility
Research, medical purposes : 10 kg/year/ facility
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 73

Substantive Issues in Relation to Chemical Industry Declarations

18. There are a number of substantive topics and issues that are still under consideration by
the Commission that relate to industry declarations. These include low concentrations,
biochemical and biologically mediated processes, DOCs including PSF chemicals, aggregate
national data on scheduled chemicals, castor bean processing plants, past production of
Schedule 1 chemicals at facilities having capacity above 1 tonne per year for purposes not
prohibited by the Convention. The synopses of the debates associated with these issues and an
estimate of the status of these issues within the Commission follow. The Commission Expert
Group referenced is the Expert Group on Chemical Industry Issues.

19. Low Concentrations: The Convention, in paragraphs 5 of Part VII and 5 of Part VIII of
the Verification Annex, exempts from declaration requirements mixtures containing a low
concentration of Schedule 2 and/or 3 chemicals. This exemption is not applicable, however, if
the "ease of recovery" of the scheduled chemical and its total weight pose a risk to the object
and purpose of the Convention. The Convention stipulates that guidelines be developed for
those cases when mixtures containing Schedule 2 or Schedule 3 chemicals at a low
concentration need to be declared.

20. The "low concentration" issue is critical to the determination of which facilities and
activities in relation to mixtures of chemicals are declarable. The issue is both on process
streams (for Schedule 2 and Schedule 3 chemicals), and on further processing or consumption
of intentional formulations (for Schedule 2 chemicals only). Its solution will be important in
answering whether, for example, impurities, by-product streams, product wash liquids,
scrubber fluids, incinerators and other waste treatment plants, or processors and consumers of
ink and dye formulations and certain lubricants need to be declared and may become liable to
possible inspection.

21. During the last occasion that the Expert Group addressed this issue in relation to Schedule
2 chemicals, the following two approaches were recorded for further consideration:

(a) agreement on total weight and on a percentage below which a declaration would not be
required (compare solution 1 in Annex 1 of PC-V/B/WP.15), provided that the Schedule 2
chemical is not subsequently isolated; and

(b) elaboration, in accordance with paragraph 5 of Part VII and paragraph 5 of Part VIII, of
criteria related to the "ease of recovery" to be used together with quantitative weight thresholds
(compare solution 2 in Annex 1 of PC-V/B/WP.15).

22. The Secretariat has prepared background material on the issue of low concentrations
which may help Member States evaluate these options during the current intersessional period.

23. Biochemical and Biologically Mediated Processes/Production by Synthesis: The

Convention defines "production" of a chemical as "its formation through chemical reaction".
There are differing views as to whether biochemical or biologically mediated processes are
covered under this definition. A related yet distinct question is whether the use of the terms
"production by synthesis" in Part IX of the Verification Annex implies any qualification on the
term "production", and what the implication of that would be for the coverage under Part IX, if
any, of biochemical or biologically mediated processes used for the manufacturing of DOCs.
The question presents various aspects:
(a) in relation to Schedule 1 chemicals, the Expert Group has resolved the issue of
74 Effective Implementation of the CWC

acquisition of Schedule 1 chemicals by extraction and isolation from natural products, except
possibly for ricin (compare paragraph 2.3 of PC-VIII/B/WP.10). For Schedule 1 chemicals,
consequently, the solution to the above question should have minimum impact on declarations
for most States Parties.

(b) in relation to all scheduled chemicals, an understanding on the meaning of "production"

was tentatively reached in the Expert Group (paragraphs 3.3 of PC-VIII/B/WP.10 and 3.1 of
PC-IX/B/WP.2), namely that: "the term "production" as defined in paragraph 12 (a) of Article
II should be understood to include production of a scheduled chemical by a biochemical or
biologically mediated chemical reaction." The Expert Group was, however, unable to adopt this
understanding, and different views remain as to the coverage, if any, of biological and
biologically mediated processed under the term "production" as defined in Article II. The
differences in interpretation of the term "production" would not lead to significant variances in
the content of declarations on scheduled chemicals and related facilities at EIF of the
Convention, given the current pattern of production of scheduled chemicals. The diverging
interpretations are largely based on legal grounds and may also involve security concerns (i.e.,
related to the coverage of the Convention per se).

(c) In relation to facilities producing DOCs including PSF chemicals, the Expert Group
discussed the meaning of "production by synthesis" and identified three different schools of
thought (paragraph 5 of PC-VIII/B/WP.10 and 4.1 of PC-IX/B/WP.2):

(i) under Part IX of the Verification Annex (Regime for Other Discrete Organic Chemicals),
biochemical and biologically mediated processes are not covered under the term "production by
synthesis" and, consequently, if a DOC is produced by a biochemical or biologically mediated
process no declaration under Part IX of the Verification Annex would be triggered;

(ii) "production by synthesis" means the formation of a compound by combination of its

elements or constituents irrespective of whether that process occurs in a chemical or biological
production environment; or

(iii) biochemical processes (i.e. processes involving the utilisation of biochemical processes
within living organisms, such as fermentation) are not covered by the term "production by
synthesis"; however, chemical production processes that utilise biological principles, such as
catalysis with immobilised enzymes, could be considered as production by synthesis when the
reaction results in the formation of a compound by combination of its elements or constituents.

(d) The Expert Group also considered another possible approach to determine the scope of
the term "production by synthesis". This might involve the identification of examples of
facilities where the operations might be considered covered or not covered under the term
"production by synthesis". These might provide families of chemical operations whose
declaration requirements could be addressed individually.

(e) There is also a view in the Expert Group that in relation to the term "production by
synthesis" used in Part IX of the Verification Annex: biochemical and biologically mediated
processes are not considered production and are, therefore, not covered under the term
"production by synthesis". The view was also expressed that the term "synthesis" adds only a
restriction on the scope of production by chemical reaction.

24. The question of the declaration of certain industries - such as breweries and wineries - is
complex. This is due to the fact that the issue(s) concerning "biochemical and biologically
mediated processes" / "production by synthesis" partly overlaps with the one discussed below
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 75

(DOCs including PSF chemicals). Accordingly, if biological processes would be considered

covered by the Convention, the coverage or non-coverage of these industries would have to be
approached from the definition of DOCs. If biological processes were excluded, irrespective of
whether as a result of an understanding on the definition of "production" in Article II or by
reference to the term "production by synthesis" in relation to DOCs in Part IX of the
Verification Annex, the coverage of breweries/wineries, etc. may be obviated.

25. DOCs (Including PSF Chemicals): The Expert Group considered, yet failed to agree on,
a tentative agreement on DOCs (paragraphs 3.2 of PC-VIII/B/WP.10 and 2.1 of PC-
IX/B/WP.2). The fundamentals of the debate on this issue revolve around whether a DOC is
only such when it is produced as a single entity in a given production process, e. g. multiple
products produced and later isolated by processing from a given production by definition do not
make them discrete chemical products. In addition, the question of purity of the produced
chemicals from the production was discussed by the Expert Group. In the Expert Group it was
understood that, while many industrial products have a purity that is less than 100 percent,
industrial chemicals produced by synthesis can for all practical purposes be considered as
DOCs only if they are characterised by one chemical structure, a chemical name and a CAS
number (if assigned).

26. The question of DOC definition is one of boundary condition establishment and one
whose answer can have an enormous impact on the number of plant sites which will be
required to declare production quantities under the Convention.

27. Aggregate National Data on Scheduled Chemicals: Aggregate national data are to be
declared on the production, export and import of Schedule 3 chemicals. The discussions in the
Expert Group on Chemical Industry Issues have largely focused on the production figures.
While the Expert Group on Industrial Declaration Requirements took a decision in regard to
Schedule 2 chemicals (the aggregate national production figure equals the total of all individual
production figures of the declared Schedule 2 plant sites, compare the Charts attached to PC-
III/B/WP.8), this approach was questioned for Schedule 3 chemicals given that the Convention
specifies declaration of the production amount of Schedule 3 plant sites is in ranges.

28. On the foregoing issue the Expert Group has reduced its search for an answer to the
following two options:

(a) Option 1 calls for plant sites to submit aggregate data to their National Authority with a
precision greater than that required by the Convention and greater than that with which the State
Party is called upon by the Convention to submit data to the Technical Secretariat. The Expert
Group was unable to agree whether aggregation should include not only production at
declarable plant sites but also at those non-declarable plant sites where production was below
the declaration threshold. It has been noted that this may cause for Member States difficulties in
the drafting of their national implementing legislation.

(b) Option 2 suggests that is the number of plant sites in each production range should be
declared for each range. Whilst such an approach does not directly give a national aggregate
figure, it will afford the number of plant sites producing each Schedule 3 chemical in the
tonnage ranges requested. In terms of verification planning this may be a more useful
declaration for the Secretariat.

29. The decision on this issue will have consequences for the approach taken in the national
implementation of the Schedule 3 regime (i.e., would the national data collection from chemical
producers be restricted to those declarable under Part VIII of the Verification Annex or go
76 Effective Implementation of the CWC

beyond that). The decision should have no impact on the transparency provided by the
Convention as the data from individual facilities are not shared between the States Parties.
Furthermore, the verification value of the aggregate production figure is limited. Under Option
1, inconsistencies may be detected between the national aggregate production and the total
derived from the plant site declarations. That would only matter, however, in case of large
discrepancies which would be difficult to follow up. Under Option 2 the cross-check between
the two data sets (national aggregate data and plant site declarations) would serve solely as a
consistency check of the national aggregate and would not carry any additional information.

30. Castor bean Processing Plants: The Expert Group recorded in PC-VIII/B/WP.10, and
again in PC-IX/B/WP.2 (paragraph 7.1) a view that, in the context of castor oil processing
plants, the approach agreed on acquisition of Schedule 1 chemicals (compare paragraph 24 (a)
above) should not prejudice the Convention's provisions regarding the declaration of chemical
weapons production facilities. This includes any facilities that have produced, as an
unavoidable by-product, Schedule 1 toxins, e. g. ricin as a natural inclusion in the pulp left
from castor bean cold processing which might or might not be considered as declarable. Others
held the view that, in the light of that understanding normal castor bean processing plants need
not be declared, and see this issue as being effectively resolved. A definitive conclusion on the
issue is still being sought.

31. Past Production of Schedule 1 Chemicals at Facilities Having Capacity Above 1 Tonne
per Year for Purposes not Prohibited under the Convention: The Expert Group on Chemical
Industry Issues noted that all (past or present) facilities which after 1 January 1946 met the
definition of a chemical weapons production facility (CWPF) as contained in paragraph 8 of
Article II should be declared as CWPFs irrespective of their purpose, and that all relevant
provisions of the Convention will apply irrespective of the status of the facility. One delegation
proposed a redrafted version of this understanding with a view to finalising a position on this
issue. Thus, the issue has remained unresolved.

The Draft OPCW Declaration Handbook

Introduction

32. The sections of the OPCW Declaration Handbook for use by National Authorities that
apply to data that will be required from the chemical industry are presently under development
by the Declarations and Confidentiality Branch of the Provisional Technical Secretariat. A hard
copy of the latest (third) version of this Handbook has been provided to every Member State of
the Preparatory Commission. A diskette containing the Handbook is also available from the
Secretariat upon request. The purpose of the handbook is to provide to National Authorities of
States Parties of the CWC detailed explanations on requirements in relation to initial and annual
declarations that are due to the Technical Secretariat under the provisions of the CWC.

Sections of the Declarations Handbook relevant to the Chemical Industry

33. Sections A, B and C of the Handbook apply to chemical industry. Each section of the
Handbook contains summaries of the relevant definitions, declaration requirements and specific
instructions on how to complete the declaration forms annexed to the Handbook using codes
which are defined in the andbook appendices.

34. Section A of the Handbook provides a general introduction describing the purposes,
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 77

applicability, States Parties obligations, how States Parties make declarations, and code
descriptions. Section A has an annex which contains instructions in regard to data formats and
guidelines for completing declaration forms.

35. Section B titled "Industrial Declarations" describes those chemical industry declarations
that are due under Parts VII, VIII and IX of the CWC Verification Annex, which apply to
Schedule 2, Schedule 3 and DOC chemicals and their related facilities. It indicates which
declarations are treated in the section, the requirements for each State Party in regard to industry
declarations, declaration requirements in relation to declaration forms, definitions, and
additional explanations. Section B has an annex which contains the declaration forms for
Schedule 2, Schedule 3 and DOC chemicals and their related facilities. Appended to this annex
are tables of country codes, code descriptions for industrial production groups, activities codes,
and production purposes codes. An additional appendix termed the "Handbook of Chemicals"
is presently being composed by the Verification Division. This Handbook will contain
information on chemicals which will be subject to declarations and will ease difficulties for the
description of structural formulae of scheduled chemicals in the declaration forms.

36. Section C contains the "Regime for Schedule 1 Chemicals and Facilities Related to Such
Chemicals." This section, while applicable to chemical industry, is considered separate from
Section B "Industry Declarations" because of the practical fact that the majority of facilities
involved with Schedule 1 chemicals have historically been government controlled or
administered. Declarations of Schedule 1 chemicals and facilities are conducted under the
provisions of Part VI of the Verification Annex. Section C is organised in a similar fashion to
Section B with an overview of the Convention declaration obligations followed by annexes
which provide instructions for data formats and declaration forms. In addition to the appendices
noted in relation to Section B there is an additional appendix containing consumption purposes
codes.

37. The declaration forms in Sections B and C are coded by the nature of the chemical
correlated facilities being declared. Schedule 1, Schedule 2, Schedule 3 and DOCs are prefixed
respectively by the numbers 1, 2, 3 and 4. The forms under each prefix number are organised
in such a way that binary decision trees may be used to determine whether subsequent forms
need to be filled out or that the declarations may be considered complete. For example, for
Schedule 2 chemicals Form 2.1 the "Aggregate National Data on Schedule 2 chemicals: Primary
Declaration Identification" after being completed is followed by the question with the binary
answer possibilities: "is there anything to declare?". If no, the subsequent 5 possible forms,
2.2, 2.2.1, 2.2.2, 2.5, and 2.5.1 need not be considered and the declaration contribution to
national aggregate data is considered to be completed. If the answer is yes, Form 2.2,
"Aggregate National Data, By Chemical" must be completed which in turn leads to the
questions Imported?, Exported? which with yes or no answers leads to the filling out of
appropriate forms or terminating this part of the declaration process.

38. It needs to be emphasised that the Declaration Handbook contains the forms and the
instructions for completing the forms that apply to National Authorities that are making
declarations to the Commission in The Hague. The Handbook, therefore, addresses National
Authority requirements and may or may not be a reflection of what National Authorities will use
to guide their chemical industry. However, chemical industry should still find it useful to
review Sections A, B and C of the Declaration Handbook to define what information it will be
required to provide to its National Authority. It should also be noted that these Commission
forms are designed in such a way as to be amenable to either written or electronic completion
and submission. It is likely that the National Authorities will consider doing the same with their
forms that are to be completed by the chemical industry.
78 Effective Implementation of the CWC

39. In summary, the Commission is in the process of completing its Declaration Handbook
for declarations by National Authorities. Chemical industry, as it prepares itself to make
declarations to National Authorities should also find the Handbook to be a useful guide.
Additionally, there are issues relating to chemical industry declarations which are as yet
unresolved. While there are declaration issues that as yet lack of resolution, these issues should
not preclude chemical industry from being able to estimate the greater bulk of its declaration
obligations.

Implications of the Current Status of the Commission's Work on Convention

Implementation

40. The foregoing indicates that the Commission has made significant progress towards
providing the interpretations and guidance that will provide the basis for National Authorities
and chemical industry to plan their declarations in preparation for EIF of the Convention. Most
of what needs to be declared, to include aggregate production, import and exports, facility and
plant site information and the timing requirements, is already set out in the Convention or has
been adopted by the Commission. Additionally, the Provisional Technical Secretariat has
produced a draft of the chemical industry relevant sections of the Declaration Handbook for use
by National Authorities. It is true that the unresolved declaration issues that were capsuled
above need to be agreed by the Commission before chemical industry and National Authorities
can be certain that they have 100 percent of the necessary guidance for their declarations. But
the fact that a complete picture does not exist now, and, in fact, even if it is not complete by EIF
will not preclude the ability of States Parties to make declarations about their chemical
industries. For the issues upon which the Commission is unable to agree, States Parties will
make their own interpretations and solutions in time for their national declarations due to the
Commission in the 30 days after EIF. Considering the content of the debates within the
Commission, it is likely that there will be practical consistency between most States Parties on
most unresolved declaration issues. Even if State Parties' solutions to the various issues should
turn out to be inconsistent, major problems are not anticipated. The Conferences of States
Parties to the Convention or one of its subsidiary bodies which will meet after EIF could, as
necessary, decide to continue the efforts towards issue resolution. In the meantime the
Technical Secretariat will carry on with the receipt and evaluation of declarations within the
available guidelines and use these as the basis for initiating verification processes. Thus, the
deposit of the 65th ratification today, which would trigger EIF in 180 days, can happen with
minimal problems in relation to chemical industry declarations.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 79

The role of declaration in implementation of the CWC:

The view of U.S. industry

Michael P. Walls*
Senior Assistant General Counsel
Chemical Manufacturers Assocation
Washington

I. Introduction

I am very pleased to have been asked to be a part of this important Conference on Effective
Implementation of the Chemical Weapons Convention (CWC).
We are now at a critical stage for the CWC. The signatories to the CWC, working in the
Preparatory Commission, face the challenge of maintaining the cooperative spirit achieved
during the last stages of the negotiations. In the view of the U.S. chemical industry, one of the
most important keys to maintaining a high level of cooperation will be national governments
resisting the temptation to expand the CWC regulatory regime, either through national
regulations that exceed the CWC’s more modest requirements, or through multilateral
interpretations of the CWC’s provisions that impose greater burdens on industry than was
originally contemplated.
There are several examples of this threat already being played out in CWC implementation.
Several governments are already insisting that industry will be required to make declarations on
activities at levels below the CWC thresholds. The ongoing discussions in The Hague
concerning possible exemptions couldÑif they go the wrong wayÑresult in greater declaration
burdens for the commercial industry. If there is a single message that I could deliver to the
CWC signatories, it would be that more regulation, which simply adds burdens with no
corresponding benefit in securing the goals of the CWC, is costly, unproductive, and
destructive.
This is an era where business and national governments are looking for new, more efficient
ways to regulate. If the CWC implementation effort results in a regime that is simply "more of
the same," we risk undermining the potential usefulness of the CWC effort as a regulatory
model, and risk undermining industry’s continued support for this important arms control
agreement.

II. The U.S. industry view of the CWC Declaration Requirements

In general, the U.S. chemical industry has a very positive view of the CWC declaration
requirements. My association has played a clearinghouse role as the U.S. government has
worked to develop an efficient, user-friendly declaration system.
The declaration forms developed by the U.S. government were drafted, redrafted, field
tested, and redrafted with the chemical industry’s assistance. The results of our tests indicate
that most chemical companies should be able to complete the CWC annual declarations in
approximately 2 to 20 hours, depending on the number of processes and chemicals affected.
The declaration burden for Discrete Organic Chemicals, for example, takes a minimum amount

* The views expressed in this paper are the author's and do not necessarily reflect the position of the Chemical
Manufacturers Association.
80 Effective Implementation of the CWC

of time, and relies on little detailed statistical data.

U.S. chemical manufacturers believe the CWC declaration requirements play a crucial role in
the overall implementation effort. In our view, declarations will be the initial boundary or
limitation for the routine inspection program. Second, declarations will help drive home some
of the deterrent effect of the CWC, particularly as the failure to comply with nationaldeclaration
requirements will carry with it the risk of civil and criminal sanctions. In my view it is
important not to minimize the deterrent aspect of the CWC declarations. For the typical
commercial chemical company, the declarations will be one of the few direct impacts that the
CWC will have on the business.
In addition, CWC declarations are an excellent means for identifying facility-specific
verification concerns. The declarations will create the framework for identifying and addressing
potential inspection concerns and responsibilities, and could help minimize the potential impacts
of the CWC on commercial companies.
An example of the role declarations play in minimizing costs is the effort we undertook at the
Chemical Manufacturers Association to develop a methodology for drafting and negotiating a
facility agreement for Schedule 2 and Schedule 3 inspections. The core of our methodology is
the annual declaration. Most inspected facilities should be able to use the declaration as the
foundation for the initial inspection, pointing out and clarifying any potential inspector
concerns. The declaration thus becomes the means to focus subsequent routine inspections on
those portions of a facility most pertinent to the goals and objectives of the CWC.

III. The Chemical industry and Declarations in perspective

Before discussing some of the key declaration-related issues from the U.S. chemical
industry’s perspective, we should put the CWC and its industrial impact into context.
Chemicals is a $1.4 trillion global industry. It is an industry characterized by large volumes of
foreign direct investment and international trade. The U.S. chemical industry is the world’s
largest, accounting for about 25 percent of total world output. Ranking next in total production
are Japan, Germany, and France. The U.S. chemical industry is the second largest exporter of
chemicals (after Germany), accounting for about 14 percent of total world export of chemicals.
Shipments of U.S. chemicals reached $341.3 billion in 1994, a record total. In 1994, the
industry’s trade surplus was $18.3 billion, and chemical exports of $51.5 billion, a 14.2
percent increase of over 1993. A highly regulated industry, U.S. chemical manufacturers made
a significant investment in regulatory reporting during 1994. Using our own Environmental
Protection Agency’s estimates of the expected number of responses and time required to
complete each form, the 8 major U.S. environmental statutes generated 2,950,393 reports from
U.S. in 1994. Those reported required 52,327,450 hours to complete, at an estimated cost of
$2.8 billion.
What is the significance of these numbers? On their face, the statistics suggest that the
industry is only minimally impacted by the CWC. After all, only a fraction of total production
and international trade was in the Schedule 2 or Schedule 3 chemicals. Surely reporting
obligations under the CWC could not impose a large additional burden!
The larger significance of the statistics is that the economics of commercial production,
consumption and use of the scheduled chemicals is well over the CWC thresholds. As a result,
virtually every chemical facility of any commercial consequence will be affected by the CWC
declaration and reporting. The other significant aspect of the statistics is that chemicals is a
global, very competitive, industrial sector.
As many of the participants at this meeting know, one of the chemical industry’s priorities in
the CWC negotiations was to minimize the administrative burden imposed by the Convention
on commercial interests. This goal has been achieved in part, primarily in thedeclaration-related
provisions of the CWC.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 81

There are three general areas in which additional work is needed, however.
First, chemical manufacturers need to do a better job of identifying and quantifying the
volume of international trade potentially affected by the CWC. We heard earlier today that, at
least theoretically, there are 11,000 chemical compounds controlled by the CWC. Clearly that
number is out of all proportion to the commercial chemicals that pose true risks to the object and
purpose of the Convention. We can help the national governments, and the Preparatory
Commission, by working to better characterize the chemicals and exports directly affected by
the CWC.
Second, as a global, competitive industry, chemical manufacturers need certainty. Certainty
in national and intergovernmental regulatory structures allows the industry to make more
efficient use of its resources, and plan for future needs. Yet there are important decisions that
have yet to be made in The Hague, which simply create uncertainty for the industry. In my
view, it is inexcusable that at this late date there are still no decisions from The Hague on
matters such as low concentrations, discrete organics, and other exemptions from the CWC
reporting and declaration requirements. I fully understand that progress in these areas is a
political, not technical, matter. But the fact that the decisions have not been reached does not
engender much confidence in the business community.
Finally, youÑas the officers responsible for national implementation of the CWCÑcan look at
the Convention as an opportunity to abandon reliance on "command and control" regulatory
systems. The CWC presents the chance to capitalize on the cooperation between governments
and industry to craft a regulatory system that reflects the reality of commercial trade in
chemicals and the deterrence goals of the Convention. For example, national governments
should be able to agree on how they will account for the national aggregate of Schedule 3 and
Discrete Organic Chemicals, without imposing additional burdens on the chemical industry.
National governments should view the declarations as a means of further reducing the potential
physical intrusion into the chemical industry, in a manner that does not jeopardize achievement
of the CWC’s goals.
In short, national governments should be taking a critical look at the CWC purpose served by
each declaration requirement, rather than simply adopting mechanisms that increase the
industry’s CWC implementation burdens.
82 Effective Implementation of the CWC

Confidential Business Information and the Chemical

Weapons Convention: Balancing competing interests

Michael Moodie

Information regarding unique know-how, technology, or business practices can be critical to

a company’s competitiveness in the international marketplace. This is particularly the case in the
highly competitive chemical industry. The confidentiality of this information is also a highly
sensitive issue. Some know-how and certain trade secrets, for example, cannot be patented.
Nor can a special equipment that is used at many sites. Mishandling of research vital to
maintaining a company’s competitive edge could give away years of investment and enormous
future profits. Moreover, business information such as cost data, marketing plans, and
customer and supplier lists, is often extremely valuable in identifying a business’s market
strategy and future plans. At the same time, such information can also be vital to ensure that the
verification objectives of the Chemical Weapons Convention (CWC).

A tension exists, therefore, between those equally legitimate goals of ensuring sufficient
intrusiveness to verify treaty compliance while limiting access to protect confidential business
information (CBI).

The CWC is an elaborate and highly detailed agreement in part because of the provisions
necessary to balance these competing interests. Exactly where the balance would be drawn
between intrusiveness and constraint was an issue hard fought by the negotiators. The resulting
system as defined in the treaty represents an acceptable balance that should provide a basis both
for bolstering confidence in the effective implementation of the CWC and assuring industry that
no CBI will be lost.

The negotiator’s success in finding an acceptable means to balance verification needs and the
requirement to protect CBI was facilitated by important contributions of industry itself.
Obviously, an issue as important as protecting CBI was vital for industry. Yet, industry also
recognized that an effective treaty banning chemical weapons was also in its interest, and
industry representatives have consistently supported that objective. Their positive contributions
through interaction with negotiators both in Geneva and in national capitals were critical in
helping the diplomats understand the stakes involved, the implications of possible options, and
the impact of various outcomes. Armed with this understanding, negotiators were better able to
draw an appropriate balance between the requisite intrusiveness and the necessary limitations on
sharing information.

The question was sometimes asked why the chemical industry, which in most countries is
already subject to considerable health, safety and similar regulation was concerned about the
loss of information under the CWC. The answer of course is that health, safety, and such
regulations are overseen by National Authorities while the CWC will be implemented by an
international organization, the Organization for the Prohibition of Chemical Weapons (OPCW).
Administering the Convention will include management of vast amounts of data - some of it
confidential - regarding commercial chemical activity that the OPCW will receive from all over
the world.

Most of the attention from those who discussed the confidentiality problem focused on an
unscrupulous inspector conducting industrial espionage for a rival country or firm. While
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 83

dramatic, this scenario is not very likely. It would be easier for a rival to subvert an employee
of the facility to provide key information than to get a single inspector to do so. This scenario
also suggests that the inspection of a facility is the only time at which a facility or company
should be concerned about protecting CBI. This assumption is questionable. Protecting
confidentiality is an imperative throughout a chain of activities involving

-- the provision of information by a facility to the National Authority, the

government entity in a CWC member-country responsible for its national
implementation;

-- the National Authority’s storage of information;

-- the National Authority’s transmission of information to the OPCW

headquarters in The Hague; and

-- the storage and review of information by the OPCW.

Throughout all of these stages, as well as during the inspections, the challenge to industry
will not be to prevent the discovery of information by the National Authority or the OPCW, but
to ensure that such information, when obtained, is not mishandled.

The CWC’s Framework for CBI

The basic philosophy underlying the approach to confidential business information in the
CWC is stated in Article VIII of the Convention:

‘The Organisation shall conduct its verification activities... in the least intrusive
manner possible consistent with the timely and efficient accomplishment of its
objectives. It shall request only the information and data necessary to fulfil its
responsibilities under this Convention. It shall take every precaution to protect the
confidentiality of information on civil and military activities...’

The key principle inherent in the CWC’s approach to protecting CBI is that only the minimum
information necessary to ensure verification of compliance with the Convention is to be
collected. The focus is only on that information or those items bearing directly on
demonstrating a facility is in compliance with the CWC.

This general commitment is operationalized in the treaty’s Confidentiality Annex. The treaty
requires, however, that all parties play a role to ensure that critical information is not
inadvertently released of intentionally disclosed.

Individual companies of facilities bear major responsibility for the protection of CBI. Most
importantly, a company can indicated both its declarations in during inspections which
information it deems confidential. Perhaps the most serious danger a company or facility
confronts in protecting its CBI is complacency and losing the attitude that maintaining CBI must
be a constant priority. An ‘evergreen’ process should be established both within a company and
at specific facilities to guarantee that the identification and handling of CBI is an ongoing
concern. It is also important for company representatives to be well versed in the range of
possible measures discussed below that can be used to protect confidential information both in
making declarations and during inspections.
The National Authority will be the transmission belt for information from CWC-affected
companies on its territory to the OPCW. The National Authority, therefore, also has the
84 Effective Implementation of the CWC

obligation to ensure that CBI is protected. The National Authority will also screen and
aggregate data before it is transmitted to the OPCW; this is an important step in that it will
segregate confidential information.

In handling CBI, the OPCW staff from the Director General on down must maintain the
highest possible standards. OPCW employees must not only protect information during their
serve in The Hague, but they will be restricted in the information they can disclose for five
years after they leave the organization. The OPCW approach to providing individuals access to
information will be based largely on the ‘need to know’ principle, and the kinds of access to
information an OPCW employee enjoys will be part of his or her formal job description. All
states parties will be notified of designated OPCW employees who will have access to CBI.
The OPCW is to have three levels of confidentiality: Restricted, OPCW Protected, and OPCW
Highly Protected. All data will be stored in a controlled and secure information management
system.

In the event of breach of confidentiality, the OPCW’s Director General is empowered to

conduct a full investigation and to impose punitive measures which could range from financial
penalties to the loss of an individual’s diplomatic immunity from criminal prosecution. The
CWC also provides for the creation of a commission for settlement of disputes arising from
CBI loss, although the OPCW Preparatory Commission, currently in the process of finalising
details for the CWC’s entry into force, must still agree on the details of that body.

Maintaining Confidentiality
The CWC provides for a number of measures that companies can use to ensure that its
confidential information is properly protected.

Declarations. In making declarations, management must provide only treaty-relevant

information. In giving these declarations to their National Authority, individual companies will
determine and designate which information must be regarded as CBI. The National Authority
will transmit this information to the OPCW in The Hague as part of its full declaration. The
OPCW must maintain the security of that information it receives designated as CBI. Companies
must keep in mind, however, that given the CWC’s requirements for transparency and
confidence building, it allows other states parties to request information from both the initial
and annual declarations of another state party, some of which might be confidential. CWC
states parties are required, however, to treat that information with the same level of
confidentiality as the OPCW.

Declarations must also be viewed as closely linked to inspections which will be conducted to
verify the accuracy of declarations as well as to verify the non- production of Schedule 1
chemicals. Declarations must be completed, therefore, with an eye to possible inspections. It
would not do, for example, to take care to protect CBI in declarations only to lose it because the
company had not thought through the conduct of an inspection.

Inspections. Consistent with the principal of providing only treaty-relevant information,

during an inspection, the inspected facility must show only those operations inspectors need to
see to verify the accuracy of the facility’s declarations and its non-production of chemical
weapons or chemical weapon precursors above treaty-designated thresholds. Inspectors are
obliged by the treaty to conduct the inspection in the last intrusive manner possible, therefore
limiting their presence only to areas applicable to the treaty. Ultimately, an inspected site can
deny inspectors access to information or areas not related to the CWC. If an inspector’s request
for access to information or to an area of the inspected site is denied or significantly restricted,
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 85

however, the inspected party has a treaty obligation to make every reasonable effort to find an
alternative means of satisfying the inspector’s concerns.

The conduct of sampling provides an example of how inspections can be constrained to

protect CBI but nevertheless facilitate verification. Air, soil, or other samples taken by
inspectors will be analysed on-site whenever possible, using either the inspected facility’s
analytical equipment (in the presence of an inspector) or the inspection team’s own equipment.
Any samples removed from the site will be sent to an analytical laboratory with no direct
identification of the site from which they were taken. Such samples will be kept in coded
storage under similar circumstances. Any samples removed from a site will be split, with a
portion remaining with the facility owner/ operator to guard against mistaken accusations
arising from incorrectly identified samples or other errors in handling. Analysis will be directed
only toward verifying the presence or absence of CWC- controlled chemicals.

Companies subject to inspection on a regular basis should give serious consideration to

concluding a facility agreement which govern the conduct of OPCW inspectors and National
Authority escorts at specific sites. Concluded between the OPCW and the National Authority of
a state party, facility agreements are designed as a guideline to provide mutually agreed limits
on the action of inspectors, delineating for example, the areas in the plant where samples may
be taken, the limits on access to certain sensitive areas, rules on photography, record handling,
and the procedures for inspector escorts. Facility agreements are intended to tailor verification
activities to the specific circumstances of each site. They do so essentially by steering inspectors
away from those areas of a facility that represent high proprietary value to the plant owner/
operator but low value to the Convention. They also govern the inspectors’ and operators’
responsibilities when that differentiation is not possible.

It is important for facility operators to be involved in the conclusion of a facility agreement for
several reasons. First, the operator of a facility has a far better appreciation of what is valuable
business information and should remain confidential than even the best trained National
Authority representative who will be doing the negotiation with the OPCW inspectors. Second,
the facility operator is the only party in the process whose priority is centred on limiting access.
As such, he serves as a counterweight to the other participants whose goal is treaty verification.
Third, participation by industry representatives should alleviate industry nervousness and foster
a better spirit of cooperation than if the agreement were negotiated without any facility input.

During an inspection, even of facilities without facility agreements, site managers can also
resort to the treaty-approved procedure of ‘managed access’ to protect CBI. This procedure
allows for the facility manager to take a number of steps to prevent unwarranted disclosure of
sensitive information. Theses steps include:

Shrouding: sensitive pieces of equipment can be covered or obscured in some other

way.
Masking: gauges or other indicators of critical process variables can be taped over.
Removal: particularly sensitive records can be removed from the site; there is a risk
in such a practice, however, in that it might suggest to inspectors that the facility had
something to hide.
Restriction: activities of the inspectors can be constrained, for example, by providing
‘random selective access’ so that inspectors do not go everywhere within a particularly
sensitive portion of the site but to a limited number of places of the inspectors’
choosing within an area.
Repetition: facility managers have the right to request that inspectors take a second
photograph from a different perspective if they feel the initial picture has compromised
86 Effective Implementation of the CWC

CBI.

Inspectors may be refused entry into a particular building, for example, but a special viewing
point for looking into that building could be established so that what an inspector sees is
sufficiently constricted to protect CBI, but also provides enough information to demonstrate
compliance with the treaty. The National Authority escort present during an inspection can, in
instances where no suitable alternative can be defined, compel the granting of access.

Protecting confidential business information under the Chemical Weapons Convention will
require commitment on the part of the senior executives as well as company representatives at
inspected facilities. It demands careful management and preparation on the part of business. It
will also be a major responsibility for government representatives in the National Authority and
international civil servants of the OPCW. If the CWC is to be effective, however, it must
demonstrate that the balance that it represents among competing interests are the most
appropriate. A critical balance in this regard is that between sharing and protecting information.
The negotiators of the Convention went to great lengths to draw an acceptable balance. The
responsibility is now on those who must make the treaty work.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 87

Third Session1: Declaration Requirements

Background papers to this session were presented by:

- SIPRI- Saskatchewan- Frankfurt Group:
The Chemical Weapons Convention and Discrete Organic Chemicals
Industrial Declarations and the CWC
Declaration Thresholds and Aggregate National Data
Declarations, Low Concentration and Mixtures

Summary
During this session various aspects of declaration requirements under the CWC have been
discussed. In their presentations speakers addressed the aspect of the current situation of the
negotiations within the PrepCom on declarations of the chemical industry under the CWC,
declaration requirements from the point of view of a multinational company, a nationalchemical
manufactures association, an international chemical association and a National Authority.
Finally, the aspect of confidential business information was addressed.

Dr. Clagett reported on ‘Convention Requirements for Chemical Industry Declarations’. He

thereby pointed out to the all various requirements for industry, but put special emphasis on
declaration requirements regarding chemicals, for which a definition has not been agreed upon
so far. Further, the draft of the Declaration Handbook, developed by the PTS has been
explained. His opinion that although these definitions have not been decided yet and may not be
decided on until the date of entry into force, this will not preclude the ability of States Parties to
make their declaration, has been challenged by other speakers. Dr. Plant, presenting the system
implemented within Zeneca to ensure full compliance with the declaration requirements
especially stressed the need for a quick decision to be taken on debated issues, such as low
concentration and Discrete Organic Chemicals. Mr. Walls, presenting the view of the US
chemical industry, agreed to this as a global, competitive industry like the chemical industry
needs certainty in these fields. He further, pointed out that the declaration requirements for the
chemical industry should be kept within the framework of the declarations required by the
CWC as further reaching requirements would impose the declaration burden for industry
without balanced increase in the achievement of the goals and objects of the CWC. Addressing
the issue from the perspective of a National Authority Dr. Svensson also urged the need for
definitions on low concentrations and Discrete Organic Chemicals, as this is necessary for the
planning process of the National Authority. The work load of a National Authority may differ
significantly with respect to different definitions of for example low concentration. However
the main part of his presentation was devoted to inform participants on the experience the
Swedish National Authority made with an ‘initial declaration’.
Mrs. van Heck informed participants on the role of CEFIC as the European chemical industry
association within the negotiations of the CWC in Geneva and later on in The Hague and how
this role changed in the various parts of the negotiation process.
Finally Mr. Moodie addressed the issue of confidential business information (CBI), an
important aspect of the declaration requirements. Thereby, he did not only explain the
provisions of the CWC regarding CBIs, but also pointed out to the possibilities of industry and
National Authorities to protect CBIs as well as the dangers to disclose them. He emphasised the
need to understand CBI- issues as a part which has to be kept in mind in all fields of CWC
related issues, which requires thorough preparation and which all players in the field of the

1 Report by York von Lersner, Research Assistant at the University of Frankfurt.

88 Effective Implementation of the CWC

CWC should be aware of now and after entry into force.

Discussion
The discussion following the presentations focused mainly on definitions for low
concentrations and Discrete Organic Chemicals and the role of industry in this respect,
information data bases and identification of companies affected by the CWC and the question of
thresholds for declaration of specific chemicals.

Regarding the definition of e. g. low concentrations and Discrete Organic chemicals it was
pointed out that a solution for these problems is a political issue and not a technical one. This
becomes especially apparent in the combined industry meetings at The Hague, when
representatives from industry could agree on a technical definition, which the PrepCom could
not adopt. Industry has put in a lot of effort to support the process of finding a definition for
various problems, but as the result is still unsatisfactory in the perspective of industry the
frustration among industry is increasing. Various participants, especially from industry,
stressed the need for a clear definition of low concentrations and Discrete Organic chemicals, as
these definitions have a major impact on the declaration task for industry. The above mentioned
frustration of industry has been recognised by the PTS, but it was referred to that persons, who
have to negotiate the definitions are not chemists, but diplomats. The problems diplomats face
in The Hague is that they cannot solve one problem after the other, but have to solve them all at
once. A participant compared in this respect diplomats with musicians, who also have to bring
all pieces together before the work is actually finished. But this is not the only problem of
negotiation process of these definitions. Other problems are that diplomats interpret various
provisions of the CWC differently and that diplomats are bound on the orders of their
respective government. In many fields of the CWC specific provisions are interpreted in a
special way by the National Authorities involved in the implementation of the CWC and these
interpretations have to be taken into account by diplomats, while negotiating the definitions
within the Expert Groups. But again, it has been expressed that substantial progress has been
made over the last two years in The Hague and although precise definitions may not exist on the
date of entry into force, the OPCW should still be able to verify most of the facilities affected by
the CWC. On the other hand, concern has been expressed how conclusive information can be
collected, if the interpretation of low concentrations or Discrete Organic Chemical is left to the
national authorities.

Concerning the identification of affected facilities, it was argued that it could be useful to
bring all the different existing data bases together and compare them, as apparently more
information on affected companies exist, as these information may be recorded in toxic
materials registers or others. Reactions to that suggestion were cautious. Such a comparison
could be used only as another source among others. Further, the effect for the public relation of
a company had to be taken into account, as they would appear on registers, which refer to
chemical weapons or toxic materials and this has a negative effect on customers.

With respect to the question of thresholds, it was first discussed, whether thresholds should
be implemented in respective national legislation and second, what will be done with the
information acquired by the National Authority. Arguing in favour of the non implementation of
thresholds it was said that the control of compliance with the requirements under CWC related
regulations is a lot easier and better to conduct. Further, the government will gain knowledge
about all the companies somehow using chemicals, listed in the Schedules of the CWC.
Contrary to that it was argued that lack of thresholds for declarations would increase not only
the work of the National Authorities, but also the expenses for the government. Further, the
protection of CBIs may decline. And National Authorities and the OPCW would certainly not
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 89

be able to cope with all the information. Further, the relevance of this data was questioned, as it
will be difficult to explain the relevance of an information for the aims and purposes of the
CWC to the affected company.

Finally, a comment was made with regard to different names used in chemical industry for
chemicals listed in the CWC. In this comment the danger of using different names for
scheduled chemicals was stressed, as this could produce confusion with respect to the
declaration obligations of a company.
90 Effective Implementation of the CWC

Fourth Session: Inspection Requirements

Inspection of industrial facilities in accordance with
Article VI

Ralf Trapp
Provisional Technical Secretariat
Preparatory Commission of the OPCW
The Hague, Netherlands

1. Introduction

1.1 Article VI of the Chemical Weapons Convention establishes, inter alia, the basic
obligations of the States Parties of the Chemical Weapons Convention in regard to routine
verification of facilities involved in declarable activities not prohibited under the Convention.
These activities not prohibited relate to the chemicals listed in the Schedules, and to chemical
production facilities involved in declarable production of discrete organic chemicals (DOCs
including PSF chemicals). In general terms, the verification measures under Article VI include
data monitoring and on-site inspections. These routine verification measures are without
prejudice to possible challenge inspections at industrial sites. There is, however, an expectation
that their execution may reduce the likelihood of such challenge inspections in industry.

1.2 Article VI on-site inspections are characterised in the Convention as systematic for
Schedule 1 facilities, risk assessment based for Schedule 2 facilities, and random for Schedule
3 and DOC/PSF facilities. The concept of "systematic" inspection under Schedule 1 indicates
regularity in relation to repeat inspections as well as a high degree of quantification in the
verification methodology. This contrasts with less regular inspections under Schedules 2 and,
even less, Schedule 3 and DOC facilities, the latter utilising predominantly qualitative checks
only. It should be noted that the Convention, though characterising Schedule 3/DOC
inspections as "random", qualifies that approach by reference to risk factors and other criteria.
This is a clear indication that the selection of industrial facilities for inspection was not actually
meant to be based on a complete randomisation but on a risk-based inspection planning
strategy. The regime differences between Parts VI, VII, VIII and IX of the Verification Annex
also indicate that the Convention, as a rule, assumes a decreasing risk vis-à-vis the object and
purpose of the Convention in that order.

For an illustration of the Article VI verification approach compare figure 1 on the following
page:
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 91

Figure 1: Systematic versus random inspection under Article VI

Schedule
Schedule 11 Schedule
Schedule 22 Schedule
Schedule 33 Discrete
Discrete Organic
Organic Chemicals/
Chemicals/
chemicals
chemicals chemicals
chemicals chemicals
chemicals PSF
PSF chemicals
chemicals

Data monitoring effort

Inspection frequency (S3 and DOC combined)

Quantification during inspections

SYSTEMATIC
SYSTEMATIC RANDOM
RANDOM

Perceived risk of the chemical(s)

Number of declarable facilities

1.3 This paper addresses the a number of issues related to verification under Article VI. It
will not in any detail look into challenge inspection of facilities declared under Article VI. It
ought to be stressed at the very outset, however, that challenge inspections, while perhaps
unlikely to occur very often at declared industrial site, cannot be excluded from a
comprehensive treatise of inspections at declared industrial sites. This discussion will focus on:

(a) data monitoring;

(b) inspection requirements and inspection planning aspects (selection of facilities to be

inspected under Article VI);

(c) conduct of inspection under Article VI;

(d) facility agreements and the role of model agreements; and

(e) the roles of the inspection team, the State Party escort and the facility operator,
respectively.

2. Data Monitoring

2.1 The basis of all verification activities under Article VI are the declarations to be
submitted by all States Parties, as initial declarations after entry into force (EIF) and
subsequently, beginning in the calendar year after EIF, as annual declarations on past as well as
on future (i.e., expected or planned) declarable activities, and on certain changes to declared
activities during the year. The information contained in these declarations can conceptually be
divided into two kinds: information shared between all States Parties in accordance with
92 Effective Implementation of the CWC

paragraph 2(b)(i) CA as qualified by paragraphs 11 VA-VII, 11 VA-VIII and 8 VA-IX,

respectively, and data that is available to the Technical Secretariat (TS) only. The latter includes:

(a) transfer notifications for Schedule 1 chemicals to be transferred between two States
Parties;

(b) national aggregate data for Schedule 2 and Schedule 3 chemicals; and

(c) plant-site quantitative information on production volumes or ranges (for Schedule 2

chemicals also volumes of processing and consumption).

2.2 Data monitoring is a task undertaken both on the national level and by the Organisation
(i.e., by the Technical Secretariat on behalf of all States Parties). National Authorities will
receive from the Organisation, either automatically under paragraph 2(b)(i) CA or upon request
under VA-Parts VII - IX, certain declaration information originating from other States Parties.
These data are submitted for reasons of providing transparency, and may be evaluated by the
receiving States Parties. The Technical Secretariat, being the sole depository of all declaration
data, will also undertake data evaluation in relation to information contained in declarations and
of other data, in particular inspection reports.

2.3 Data monitoring by the Technical Secretariat will have at least two distinct purposes:

(a) scrutiny for indicators potentially relevant for compliance assessments in order to
identify follow-up steps that may be necessary to resolve any anomalies; and

(b) extraction of parameters for inspection planning purposes.

2.4 Possible techniques that may be used in data monitoring in accordance with sub-
paragraph 2.3(a) may include:

(a) cross-matching of related data sets (e.g., the declarations of national exports and
imports by scheduled chemical and country, or the transfer notifications in relation to Schedule
1 chemicals);

(b) trend monitoring (e.g., significant increases or decreases in declared production

quantities for a given plant site); or

(c) pattern evaluation (e.g., analysis of potential relationships between different scheduled
chemicals declared at a single plant site).

The data types from the different declaration sets due under Article VI which are subject to
data monitoring are illustrated in figure 2 below:

Figure 2: Data monitoring

 Conference Proceedings, Bad Homburg 8 - 10 September 1995 93

DATA
DATA MONITORING
MONITORING
Schedule 1 Schedule 2 Schedule 3
chemicals chemicals chemicals DOC/PSF facilities
Shipment-related
notifications 30 ds
in advance
Export/imports
annually in retrospect,
by country
Advance declarations
on activities,
with time periods
Advance declarations
in annual production n.a. n.a.
ranges
Retrospective
declarations
Annual updates
(no plant or n.a. n.a. n.a.
chemical related detail)

2.5 Data monitoring will be a significant source for certain inspection planning functions
and for the formulation of the inspection mandates. Certain data contained in declarations will
be relevant for preliminary (i.e. pre-initial-inspection) risk assessments. Also, long-term data
monitoring will allow to generate track records of declared Article VI facilities, or identify
significant changes in risk assessment parameters related to declared plant sites which in turn
form one of the criteria in decision making in relation to the selection of inspection sites and the
delineation of inspection goals.
3. Inspection requirements and inspection planning aspects

Schedule 1 facilities

3.1 All Schedule 1 facilities that are declared under Part VI-VA are subject to systematic
inspection. They will receive an initial inspection in time for the Organization and the State
Party to which a facility belongs to conclude a facility agreement not later than 180 days after
EIF. For practical reasons and allowing for the time necessary to complete all facility
agreements (and assuming all goes well), the time window available for the initial inspections
will be between approximately 60 days after EIF (the time span required for the designation of
inspectors and inspection assistants) and approximately 150 days after EIF. The series of initial
inspections at Schedule 1 facilities is, consequently, predominantly driven by bureaucratic
requirements established by the Convention. That does not prevent elements of assessment
from entering the planning, to the extent that time permits a crude pre-assessment based on the
declared information, aiming at having those facilities inspected first which are expected to
require more complex facility agreement negotiations given their nature and configuration.

3.2 The initial inspection will be notified to the inspected State Party not later than 72 hours
before arrival of the inspection team at the point of entry (POE).
94 Effective Implementation of the CWC

3.3 Selection of Schedule 1 facilities for follow-up inspections will be driven by the risk
assessment resulting from the initial inspection and any subsequent inspections, and by the
resources available in the inspectorate. The desired inspection frequency will be determined at
the TS headquarters, taking also into account any upper limits on inspection numbers per
annum that may have been agreed upon in a facility agreement.

3.4 Any subsequent inspection will be notified to the inspected State Party not later than 24
hours before arrival of the inspection team at the POE.

3.5 For budgetary purposes, the Commission has agreed on the following pre-EIF planning
assumptions in relation to inspections at Schedule 1 facilities (compare PC-VIII/A/WP.7):

(a) number of Schedule 1 facilities that may be declared: 751;

(b) average team size per inspection: 4;

(c) average number of days on-site during an inspection: 2;

(d) inspection window (i.e., time from start of inspection planning to submission of final
report): 13 days for the initial inspection, 12 for any subsequent;

(e) single small-scale Schedule 1 facilities (SSSF) are inspected on an average twice a year
and other Schedule 1 facilities are inspected once per year.

Actual teams sizes and inspection times will depend on the nature of a particular facility and
hence be site-specific. They will be constrained by the availability of inspectorate resources.

The inspection requirements for Schedule 1 facilities are illustrated in figure 3 below:

Figure 3: Inspection requirements for Schedule 1 facilities

1 In assessing that planning figure, it should be remembered that no minimum annual production threshold exists for
the SSSF or for the Schedule 1 facility producing for defence purposes.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 95

Initial
Schedule
Schedule 11
Inspections
Finalisation of
Facility
Initial Agrements
Declarations
Subsequent Inspections

EIF 30 60 150 180 270 360

National Inspector Annual Declarations

Data Designation on Year 2 Planned
Collection Activities

Schedule 2 facilities

3.6 The Convention stipulates that the initial inspections at Schedule 2 plant sites liable to
inspection be carried out preferably during the first three years after EIF. This requirement will
to a significant extent drive the inspection effort in chemical industry facilities during the initial
years after EIF. The ratio of subsequent inspections at Schedule 2 plant sites that have already
seen their initial inspection will be resource-driven and the selection of such plant sites for
inspection will be based on the risk assessment for the facility in question.

3.7 Risk assessments will be performed on the basis of the information collected during the
initial inspection. The risk assessment relates to the plant site as a whole and includes
consideration of technical factors (e.g., types and amounts of chemicals, safety features, types
of process equipment, plant site personnel features, security arrangements if any) as well as
particularities of the environment within which the plant site operates (e.g., national
environmental and occupational safety legislation, State Party standards or company-specific
regulations and norms).

3.8 Schedule 2 inspections subsequent to the initial inspection will be based on facility
agreements negotiated during and after the initial inspection, unless the inspected State Party
and the Technical Secretariat agree that a facility agreement is not necessary. These facility
agreements will be negotiated on the basis of a model agreement (see section 5 below). The
number of inspections per plant site under Schedule 2 is limited to two per year (this limitation
does not imply a restriction on possible challenge inspections).

3.9 For the purpose of effective resource utilisation, the Technical Secretariat will aim at an
even spread of initial inspections over the first three years while retaining unpredictability in
relation to the timing of individual inspections. In the absence of declarations that would allow a
96 Effective Implementation of the CWC

more precise assessment of the resource requirements for conducting the series of initial
inspections, the following assumptions have been made by the Commission, albeit for
budgeting purposes:

(a) number of Schedule 2 facilities that may be declared: >300 (this figure has since the
publication of the first estimates in PC-VIII/A/WP.7 risen to an estimated range of 350 - 1000);

(b) average team size: 8;

(c) average inspection time on site: 4 days;

(d) average inspection time window: 15 days;

(e) a rather limited number of initial Schedule 2 facility inspections will commence in
the first six months after EIF, with substantial increases in those numbers beginning at
EIF+180 days.

The current inspection concept in relation to Schedule 2 facilities is illustrated in figure 4.

 Conference Proceedings, Bad Homburg 8 - 10 September 1995 97

Figure 4: Inspection requirements at Schedule 2 plant sites

Schedule
Schedule 22
Subsequent inspections

Facility Agreements
Initial inspections
Initial
Declarations

EIF 60 360 720 1080

30

National
Data
Collection

Annual Declarations
Inspector
Designation Change Declarations

Schedule 3 facilities

3.10 The Convention does not contain a specific timing requirement for the first and
any subsequent inspections at Schedule 3 plant sites but stipulates that these sites be randomly
selected for inspection. Random selection is qualified by two factors, equitable geographical
distribution of the inspection effort and information available at the Technical Secretariat on the
plant site. The information to be considered here is similar to the kinds of data used in risk
assessments under Schedule 2.

3.11 The Convention does, however, limit the number of Schedule 3 inspections per
plant site to two per year. It also limits the total number of Schedule 3 inspections per State
Party (as from year 4 after EIF the combined number of Schedule 3 inspections and inspections
under Part IX, i.e. at DOC/PSF plant sites) to a maximum of 20, or to a smaller number if a
State Party has declared less than a total of 340 Schedule 3 and DOC/PSF plant sites. In the
latter case, the maximum number of inspections per annum will be calculated as three plus 5 per
cent of the number of plant sites declared under Parts VIII and IX together.

3.12 The Commission has taken the following planning assumptions in relation to
Schedule 3 plant sites:

(a) number of Schedule 2 facilities that may be declared: 400 (this figure has since the
publication of the first estimates in PC-VIII/A/WP.7 risen to about an estimated 1000);

(b) average team size: 8;

98 Effective Implementation of the CWC

(c) average inspection time on site: 1 day;

(d) average inspection time window: 10 days;

(e) a limited number of Schedule 3 facility inspections will begin at EIF+180 days.

The Schedule 3 inspection requirements are illustrated in figure 5 below.

Figure 5: Schedule 3 inspection requirements

Schedule
Schedule 33
First and Subsequent Inspections

Facility Agreements
Initial Initiation of
Declarations DOC/PSF Inspections

EIF 60 180 360 720 1080

30

National
Data
Collection

Annual Declarations
Inspector
Designation Change Declarations

Other chemical production facilities (DOC/PSF plant sites)

3.13 These facilities will not be subject to inspection until three years after EIF. In
terms of plant sites to be declared world-wide, this category is going to be the largest of all
Article VI facilities. Planning assumptions are that about 5000 plus DOC/PSF plant sites will be
declared and eventually become subject to inspection (more current estimates run up to 20,000).
Assuming that the Conference of States Parties will not suspend the initiation of inspections at
these facilities, the number of inspections per plant site would be limited to two, and the
number of inspections per State Party would be linked to the inspection number under Schedule
3 with their combined total being restricted to 3 - 20 (compare paragraph 3.11 above).
4. Conduct of inspection under Article VI

General remarks

4.1 Article VI inspections for purposes of verifying compliance with the CWC are routine
inspections and technical in nature. As such they bear close resemblance to other technical
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 99

inspections of the chemical industry conducted for other objectives, such as chemical operations
inspections, data collection for risk assessments of chemical processes, process safety audits,
environmental compliance inspections, or occupational health and safety reviews. Unlike the
aforementioned inspections, however, routine chemical industry inspections conducted under
the provisions of the CWC are aimed at verifying compliance rather than detecting breaches in
law. While CWC routine inspections must have the capability to detect evidence of a violation,
their conceptual framework is one of co-operation and presumed compliance with the
provisions of the CWC. That may sound like just a subtle nuance but has in fact profound
consequences for the conduct of the inspection itself: it bears on the intent of the inspection.
This is evident from the specification of the inspection aims which are, in the case of:

(a) Schedule 1 facilities, to verify declarations, compliance with quantitative restrictions on

Schedule 1 chemicals and certain equipment used for their production and non-diversion of
Schedule 1 chemicals for purposes prohibited by the Convention; and

(b) Schedule 2 and Schedule 3 plants and plant sites, to verify declarations, verify that no
Schedule 1 chemicals are present or produced at the site, and for Schedule 2 plant sites to verify
non-diversion of the Schedule 2 chemicals for purposes prohibited by the Convention.

Chemical industry verification inspections attempt to accomplish these objectives while

ensuring minimal intrusion and maximum safeguarding of the inspected facility's confidential
business information.

4.2 For the conduct of inspections under Article VI, it is of critical importance to understand
the relationship between the different "facility" entities (i.e., plant site, plant, unit), and the
differences in the regimes established under the different Parts of the Verification Annex for
these entities. Here is an illustrations of the problem:
100 Effective Implementation of the CWC

Figure 6: Plant site - plant relationships in Article VI inspections

Plant Site
(S2/3, DOC/PSF)

Administration

Plant/
Managed Access; S1 facility
S1: No Access

Unimpeded Access Unit

Local
Records

4.3 For Schedule 1 facilities, no plant site - plant - relationship exists. By default, a
Schedule 1 facility is treated similar to a plant entity1 (i.e., access is unimpeded). The
surrounding plant site, however, does not exist for the purpose of inspection and no access will
be granted beyond the boundaries of the Schedule 1 facility irrespective of whether it is an
isolated facility or is situated in the middle of a chemical (or military, e.g. research) site.

4.4 In all other cases, the Convention stipulates that the focus of inspection is at the plants
declared under the respective VA-Part. Access inside these plants is unimpeded except when
and as qualified in Parts VII, VIII or IX, respectively. This is irrespective of whether an
individual plant declared under Schedule 2 or 3 crosses the verification threshold: once a plant
site as a whole has crossed the verification threshold under Part VII or VIII, all plants located at
the plant site that exceed the declaration threshold are liable to inspection.

1 In many cases, particularly for commercial Schedule 1 facilities, it may well be that the facility is in fact considered
a unit by the facility operator. However, for the purposes of the Convention, the elements typical for a "plant" as
defined in VA-I.6(b), including storage/handling areas, effluent/waste handling/treatment areas, control laboratory,
records etc., will all need to be included into the facility boundaries.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 101

This problem is further illustrated below:

Figure 7: Examples for inspection liability at Schedule 3 plant sites

Plants
Plants liable
liable to
to unimpeded
unimpeded access
access under
under Part
Part VIII
VIII

COCl2 HCN
POCL3 TMP
10,000 5,000
t/a t/a 195 t/a 180 t/a

PCL3 DMP PCL3 DMP

35 t/a 50 t/a 135 t/a 150 t/a

SOCl2 TEA
SOCl2 TEA
180 t/a 199 t/a
180 t/a 31 t/a

Plant Site A Plant Site B

(liable to inspection (not liable to inspection
under Part VIII) under Part VIII)

4.5 Under Parts VII - IX, access to the other parts of the plant site, including elements of
common infrastructure such as centralised storage and warehouse areas,
water/steam/pressurised gases/electricity/other supplies, centralised waste/effluent treatment or
administration, is only possible in the course of a clarification procedure under VA-Part II.51,
or in accordance with the facility agreement if any. That provision has to be seen in conjunction
with the general verification aim established under Parts VII - IX, i.e. to verify that activities are
consistent with the information to be provided in declarations. Access beyond the boundaries of
the declared Schedule 2/3 or DOC/PSF plants may thus be requested if there are indications that
trigger questions in relation to whether other activities at the plant site would have had to be
declared. Access is of course legitimate whenever verification of activities or declaration data
related to the declared (Schedule 2/3 or DOC/PSF) plants requires access beyond their
boundaries.

Mixed plant sites

4.6 Mixed plant sites are those that contain declarable plants in relation to more than one Part
of the Verification Annex related to Article VI. Such plant sites may be liable to Article VI
inspections under more than one VA-Part, depending on the amounts of chemicals produced.
Given the regime differences between the different Parts of the Verification Annex, inspections
can only be initiated and conducted under one Part at a time, not simultaneously under several
Parts (i.e., no "combined" inspections). During a particular inspection initiated under one Part
of the Verification Annex, plants located at the inspected plant site that were declared under
another Part of the Verification Annex will "blend" into the plant site background and will not
be in the inspection focus. Access to such plants will, under that particular inspection, only be
possible under paragraph 51 of Part II-VA in the course of a clarification, or if specifically
102 Effective Implementation of the CWC

regulated in the facility agreement.

This situation is illustrated below:

Figure 8: Inspections at a mixed plant site

Inspection
Inspection under
under Part
Part VII
VII Inspection
Inspection under
under Part
Part VIII
VIII

Notification: 48 hrs 120 Hrs

Unimpeded
Plant 1 access Plant 1
Sch. 2 Sch. 2

Plant 2 Plant 2
Sch. 3 Managed Sch. 3
access
under
VA-II.51 or
Plant site boundaries under the facility Plant site boundaries
agreement
Duration: 96 hrs 24 hrs

Technical aspects

4.7 The usual sequence of events that will be experienced by an inspected chemical industry
plant site will include inter alia:

(a) arrival of the inspection team under the responsibility of the inspected State Party (i.e.,
arranged for and escorted by National Authority personnel) at the site to be inspected1;

(b) pre-inspection briefing by the inspected State Party (with inspected site representatives);
(c) development of the inspection plan to include identification to inspection team
member(s) of the inspected State Party representative(s) and inspected site personnel that will
assist in the inspection;

(d) field inspection of operating areas within the declared battery limits2 of the site;

(e) inspection of records and documentation appropriate to operations within the battery
limits of the inspected site;

1 POE procedures ar not discussed in this paper.

2 Battery limits describes that portion of the industrial facility defining the declared plant(s) and organically related
plant site infrastructure, to include, inter alia, the units of the chemical process and the primary product processing
unit(s), and common infrastructure used to support the process such as waste treatment, ventilation, boiler house,
storage, logistic, and shipping areas and records, as appropriate.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 103

(f) sampling and analysis, as appropriate;

(g) preparation of the document containing the preliminary findings of the inspection team;

(h) presentation of the preliminary findings to the inspected State Party, for it to take note
thereof and to acknowledge any information, including samples, which the inspection team, in
fulfilling its inspection mandate, has decided to take off-site;

(i) if applicable, and in accordance with the procedures and principles laid out in the
Confidentiality Policy and other procedures that were developed by the Preparatory
Commission, removal by the inspection team of any information unrelated to the inspection
which it may have collected;

(i) if an initial inspection at a Schedule 1 or a Schedule 2 site, initiation of the negotiation of

a facility agreement which will guide subsequent inspections of the site in question; and

(j) exit from the inspected site under the responsibility of the inspected State Party.
104 Effective Implementation of the CWC

This sequence is illustrated in the following figure:

Figure 9: Sequence of events in a routine Article VI inspection

Transport Transport
12 hrs POE asap

Pre-inspection
briefing, 3 hrs, Post-inspection
inspection clock briefing (within
starts at the end 24 hrs)

Inspection within
battery limits

Sampling and
analysis
Preparation of
Finalisation preliminary
of inspection findings by
plan Check on records
inspection team

4.8 The first event involving the inspected site after arrival of the inspection team from the
POE will be the pre-inspection briefing. The National Authority representative(s) with support
of the inspected site is expected to conduct this briefing. It should be quite similar to those
conducted during engineering operations or process safety audits. This briefing will provide the
basis for finalisation of the on-site inspection planning by the inspection team, coordinated with
the inspected State Party, prior to entry of the inspection team on-site. the end of the briefing
constitutes the start of the inspection time clock (Schedule 1 inspections will be allowed on site
for the time agreed upon in the facility agreement produced after an initial inspection. Schedule
2 inspections may occur on-site for up to 96 hours, and Schedule 3 inspections may last on-site
up to 24 hours. In all cases, the inspection time can be extended by agreement).

4.9 The plans for on-site inspection by the inspection team will be in accord with the
Inspection Manual, any extant facility agreement and other relevant procedures adopted by the
Conference of States Parties. The inspection team will review the information provided in the
pre-inspection briefing and the content of the aforementioned policies and documents with the
inspected State Party prior to commencement of inspection activities on-site. Any discrepancies
between OPCW inspection requirements and inspection site, local or national regulations must
be resolved. Critical issues such as safety, "no touch" policies, use of OPCW versus local
safety equipment, decisions on the use of inspection equipment, sampling procedures,
confidentiality and other matters of a practical nature may be addressed preferably at this stage
but may also have to be resolved at any other stage as the inspection unfolds. The inspection
team will have its own safety equipment. Should it, however, prove necessary to substitute any
inspected State Party personal protective gear for OPCW approved inspection equipment due to
the greater rigor of inspected State Party safety regulations as compared to those of the OPCW,
it is expected that the inspected State Party will promptly fit and provide such equipment. It is
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 105

expected that such requirements will in industrial inspections usually be limited to distinctive
helmets, special hearing protection, electrically insulated boots, visitor smocks, etc., that may
be required by plant, local or national regulations.

4.10 Field inspection of operating areas within the battery limits declared by the
inspected State Party will be accomplished by members of the inspection team accompanied by
representatives of the inspected State Party and knowledgeable site personnel. Any hands-on
activities such as location of documentation, manipulation of equipment, opening of doors,
sampling, etc. will usually be performed by inspected State Party or site personnel. Analysis to
ascertain the absence of Schedule 1 chemicals or their common by-products or decomposition
products will be performed by the inspection team using its approved analytical inspection
equipment. Other analytical tasks (e.g., confirmation analysis in relation to declarations) may
also be performed. If appropriate and available, such analysis could also be performed using
inspected site analytical assistance. Any samples which cannot be successfully analysed on-site
or the on-site analysis of which indicated an anomaly will be prepared for shipment to
Designated Laboratories, following the approved sample-splitting, chain-of-custody and
confidentiality protection procedures of the Technical Secretariat.

4.11 The inspection team may inspected site documentation as part of the effort to
verify declarations of production (also processing and consumption for Schedule 2) and
disposition of scheduled chemicals. The inspection team will document its observations in
relation to the scheduled chemical plant capacity, the actual volumes of production (in case of
Schedule 2 also processing and consumption, as appropriate), shipments, imports/exports, and
the results of any analysis for Schedule 1 chemicals or confirmation analysis in relation to
declared chemicals. The inspection team will make no judgements as to whether or not the
inspected State Party was in compliance with the Convention. It will, however, attempt to
resolve any anomalies that may occur during the inspection, with the help of the inspected
States Party. The inspection team will record its observations on whether or not requisite
information was forthcoming or available.

4.12 The document on the inspection team's preliminary findings will be provided to
the inspected State Party before the inspection team departs from the inspected site.1 Any
confidential business information that is part of inspection-relevant documentation deemed
important to subsequent inspections by the inspection team will be protected appropriately at TS
headquarters (if taken off-site as part of the documentation listed in the preliminary findings) or,
if so requested by the inspected States Party, will be left behind in a sealed container at the
inspected plant site.
4.13 In the case of Schedule 1 and 2 sites (in the latter case unless otherwise agreed
between TS and inspected State Party) and any Schedule 3 site specified by the inspected State
Party, the initial site inspection will be followed by the commencement of the development of a
facility agreement concerning the scope, boundary conditions, and frequency of subsequent
inspections. It is hoped that such agreements will expedite such subsequent inspections and
render them less intrusive.

4.14 Before departure of the inspection team from the inspection site (and normally
before the end of the post-inspection briefing), the representative of the inspected State Party
may request the inspection team to remove from its records or equipment any information that is

1 The inspection team will after return to headquarters prepare a draft final report and submit it to the Verification
Division for processing into a final report which may include results of any off-site analysis conducted by Designated
Laboratories and comparisons of inspection results to appropriate declarations. The inspected State Party has the right
to submit comments on the final inspection report to the Technical Secretariat. These comments will be attach to the
final report before it is submitted to the Director-General.
106 Effective Implementation of the CWC

unrelated to the inspection and that, either inadvertently or unknowingly, may have been
collected by the team. The inspection team will comply with such requests to the satisfaction of
the representative of the inspected State Party, e.g. by applying extra cleaning measures to the
equipment in order to remove any surface contamination that may carry unrelated chemical
information or by demonstrating that the information carried by the team corresponds to that
listed in the preliminary findings.1 This procedure may not, however, be abused to prevent the
inspection team from taking evidence off-site, and it is ultimately to the discretion of the
inspection team leader, based on his/her inspection mandate, to decide which information is
"unrelated" and hence to be removed, and which is not. In the case of equipment which has
collected information that cannot easily be removed, special procedures may be applied with the
extreme option being the retention of the equipment by the inspected State Party subject to
immediate replacement or cash reimbursement at instant replacement cost.

4.15 After conclusion of the post-inspection briefing, the inspection team will be
escorted by the inspected State Party from the inspected site back to the point of entry. Upon
leaving the premises the inspection team will return any equipment provided by the inspected
State Party for purposes of the inspection. The inspected State Party will then take charge of
movement of the inspection team to the POE and its passage through the POE, which concludes
the national aspects of the on-site inspection process (i.e., the in-country period).
5. Facility agreements and the role of model agreements

5.1 Facility agreements will be concluded between the OPCW and States Parties for:

(a) all Schedule 1 facilities, during the first 180 days after EIF (or 180 days after the facility
was declared for the first time);

(b) Schedule 2 plant sites unless the Technical Secretariat and the inspected State Party
agree for a particular facility that there is no such need, preferably during the first 3 years after
EIF; and
(c) those Schedule 3 and DOC/PSF plant sites for which the inspected State Party expressly
requests such an agreement.

5.2 In all these cases, the initial (first) inspection will serve as the starting point for
developing the facility agreement. The inspection team will not, however, have the authority to
finalise these negotiations. The inspection team's primary responsibility in the field is to collect
relevant information, not to undertake assessments or place judgements. This is done at
headquarters, of course with the appropriate participation of the inspection team which
possesses the relevant on-site knowledge. Such an approach is also necessary to provide for a
consistent implementation of the Convention over a variety of facilities in different countries.

5.3 A major contribution to consistency in the implementation of the Convention on a global

basis is expected from the Model Agreements for the different types of facilities that will/may
require a facility agreement. These models will serve as the basis for initiating discussions on
the facility agreement. The models that are currently considered, albeit not as final drafts, are
structured into:

(a) a body of legal text which, it is hoped, will typically be carried straight into a site-
specific facility agreement without a need for major adjustments;

1 This is not, however, to be mistaken for a search procedure for which the inspected State Party would have no legal
right (the inspection team and its records and documents, and at this stage in the inspection conduct also its equipment,
are inviolable and protected under the Vienna Convention).
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 107

(b) a series of Attachments which will contain the site-specific details and agreements on the
actual conduct of on-site inspection activities, including inter alia:

(i) the specification of the battery limits of the inspectable plants;

(ii) agreements in relation to the application of safety regulations and measures;

(iii) agreements in relation to the application of measures to protect confidentiality;

(iv) agreements in relation to inspection equipment an its use, and also any possible
restrictions thereof;

(v) specifications in relation to inspection procedures including records to be

prepared and kept, inspection measures that may be applied, procedures for
sampling and analysis and any analytical support that the inspected facility may
provide;

(vi) information and agreements in relation to planning, administrative including

financial, and other logistical arrangements and factors; and

(c) possibly further Annexe such as relevant CWC provisions/sections or OPCW Policies
that may be relevant for a future inspection at the site.

5.4 While the model agreements currently under consideration may still change in some of
the detail, the basic structure may safely be assumed to be final. The argument today is
predominantly about the degree of detail in the body of the model agreement itself. There are
basically two schools of thought:
(a) model agreements (and consequently facility agreements except for their Attachments)
should be as condensed as possible and must not repeat, selectively quote or reference
Convention or OPCW Policy provisions; or

(b) model agreements and hence individual facility agreements ought to explicitly contain all
provisions and agreements necessary for the conduct of an inspection and relevant references
within the Convention for them.

In essence, the first approach tends to assume that there is nothing to be specifically regulated
for the different types of inspectable facilities (here: facilities covered under Schedules 1 vs. 2
vs. 3 vs. DOC/PSF), that the Convention itself will suffice as the regulatory basis for
inspection conduct at specific sites, and that the OPCW Policies (which were developed for all
types of inspections under the Convention including challenge inspection or inspections at CW
sites) will not require any further specification for the different types of inspectable facilities
covered under Article VI. The second approach, on the other hand, assumes that the
Convention as such and the OPCW Policies may not suffice in their respective degree of
tailoring, and that additional regulation for the different types on inspectable facilities may be
required. The first approach seems the easier one to negotiate at this moment, perhaps though
on the expense of postponing the establishment of global consistency to an unspecified later
date, by delegating it to the framework of a multitude of bilateral OPCW - State Party, as
opposed to current multilateral, negotiations. There would, then, be a danger of having a
significant delay of the first industry facility agreements actually entering into force. Recent
developments in the Expert Group on Chemical Industry Issues seem to indicate that the two
schools of thought have come closer and that agreement on the Schedule 2 model agreement
108 Effective Implementation of the CWC

may soon be possible.

5.5 Facility agreements have a number of functions. In short, they are intended to:

(a) regulate the inspection conduct and facilitate the necessary preparations for an inspection
by all parties involved (the inspection team, the National Authority and the facility
management);

(b) provide a degree of predictability for all parties involved, in relation to the conduct of
routine inspections;

(c) provide additional safeguards to the inspected facility in relation to the protection of
confidentiality;

(d) minimise possible friction or non-co-operation incidents in any future inspection; and

(e) establish an agreed framework for resolving problems during an inspection, on the basis
of the Convention's provisions.

5.6 Facility agreements are a convenient framework to establish a relationship between the
inspection team and the facility personnel/management. From the perspective of the OPCW,
that relationship does not exist otherwise. TS inspection teams are not inspecting facilities per
se, but States Parties (hence the term "inspected State Party"). The inspection team leader will
always communicate with and through the leader of the national escort.

5.7 The role of facility agreements and of model agreements is illustrated in figure 10
below.

Figure 10: Model agreements and facility agreements in industry

Negotiations
Peparatory Initial (first) between TS
Commission/ Inspection and inspected
1st Conference
State Party
of States Parties at OPCW-HQ

Model Agreement
Data gathered
and initial agreemdents Facility
Agreement

Declaration
CWC abcde
dgdg
tytyy
vv
...
Consistency with
ututu
other Facility
Agreements
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 109

National Authority and the inspection team:

How to build confidence during inspections

Dr. Graham Cooper

British Embassy, The Hague

1. Introduction
The conduct of inspections could well raise tensions between the inspection team and the
representatives of the inspected state party or the management of the inspected site, in particular
if international inspectors are involved as it is the case with the CWC. I would like to discuss
some of the activities that will take place during a routine or challenge inspection, with
particular emphasis, however, on routine inspection procedures; and to examine how possible
tensions can be reduced. This can be done best if all parties involved try to build up mutual
confidence during an inspection. Thus, the basic aim of this presentation will be to discuss
situations to be taken into account when discussing inspections and to provide an evaluation of
measures which may enhance confidence between the parties involved.

2. Types of inspections
The three types of inspections that are possible are as follows:
Routine Inspections
- Article VI
- Verification Annex (VA) Parts VI to IX
Challenge Inspections
- Article IX
- VA Part XI
Investigations of Alleged Use
- Articles IX and X
- VA Part XI

It must be mentioned that as far as industry is concerned there will be far more routine
inspections than challenge inspections. But nonetheless, we can certainly learn lessons from
both types.

There are important differences between routine and challenge inspections. First, the sites
subject to routine inspections will be selected by the Technical Secretariat (TS) and there is no
specific report of non-compliance required. The major function of routine inspections is to act
as a general deterrent, whereas the main aim of challenge inspections is to ascertain facts
regarding suspected non-compliance with the CWC. Furthermore, challenge inspections will be
requested by one State Party on another on the grounds of suspicion of non-compliance.

Another very important difference is that routine inspections will all take place in declared
facilities. The facilities know that they will be inspected and they will know largely where
inspectors will go to, based on the declarations submitted via the National Authority to the
OPCW during initial inspections and on facility agreements to be concluded between the
National Authority and the OPCW. Routine inspections in schedule 3 or DOC plants will also
be largely predictable even in the absence of a facility agreement. What happens during an
110 Effective Implementation of the CWC

inspection when an inspection team gets to the site will also be largely predictable, since the
CWC provides for elaborated inspection procedures. Thus, industry will be able to prepare for
inspections if it takes the necessary preparatory steps by training of personnel. The same holds
true for the National Authority. The only issue that cannot be predicted is when an inspection
will actually take place.

With regard to challenge inspections one important difference must be mentioned. Inspections
of that type will most probably take place at non-declared sites. Such facilities may be
inexperienced with receiving inspections; and where the inspectors are likely to want to go will
remain largely unpredictable.

3. In-country Activities
Some features which occur in both routine and in challenge inspections need to be addressed.
First, the inspection team will be received at the point of entry. There, the escort team will have
to check the inspection mandate, the identity of team members and the equipment against an
approved list. There should be an accurate checking of the inspection mandate at an early stage
so that the national escort team members are aware of what the inspection mandate precisely
says. Transport of the inspection team and equipment to the inspection site follows which
requires logistic preparation.

When the inspection team arrives at the site there will be an initial briefing. The briefing will
include general administrative details, a general description of the site and the respective facility
activities as well as a health and safety briefing. The next step will be to agree on an initial
inspection plan even if there is a facility agreement in place; the inspection team has to start
somewhere. There needs to be some discussion on an initial inspection plan which should
specify which facility or plant to be inspected and which kind of records to be checked. At the
end of the inspection there will be a debriefing. This will require the preliminary findings of the
inspection team to be delivered in written form to the escort team and the facility management; it
will include a list of samples and copies of all information taken off the inspected site.

Finally the inspected state party has to take the inspection team and ist equipment back to the
point of entry from where the team will leave. Upon their return to the OPCW the inspection
team will prepare the factual, final report and submit it to the inspected state party for its
comments.

Throughout all these activities the inspection team and the inspected state party will have
pretty continuous contact starting from the point of entry and it will be essential to cultivate a
good working atmosphere between both parties.

Differences between challenge and routine inspections

The most important difference between routine and challenge inspections is that routine
inspections will be conducted in accordance with a facility agreement, with the possible
exception in schedule 3 and DOC facilities. But there are four specific points which arise during
challenge inspections only: the inspection will be conducted without a facility agreement; there
may be negotiations about the final perimeter of the inspection site; there might be persons
securing the site; and the inspection team may request to visit any part of the inspection site. All
four situations are likely to occur during challenge inspections and will require negotiation
between the inspection team and the inspected state party.

In addition to this there will be a number of people with a different background involved in a
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 111

challenge inspection. This may include:

• representatives of the National Authority, other governmental departments might be
present as well (e.g., Industry, Foreign Affairs, Defence);
• escorting agency personnel (e.g. OSIA in the United States or JACIG in the United
Kingdom);
• representatives of the inspected site (e.g., site director, production manager, runners,
fetchers and carriers or any other personnel the inspection team leader might wish to
ask).

4. Confidence building measures

Communication
An important issue will be to establish a good channel of communication between all
participants during an inspection. It will be therefore necessary to have nominated spokesmen
on both sides to ensure the clear transmission of requests and replies and to minimise loss of
gratuitous information. On the side of the inspected state party these persons (e.g. escort team
leader, site director) will, in consultation with colleagues, be the first person to authorize
access, to answer requests and to arrange for the selection and analysis of samples. On the side
of the inspection team this role will be assigned to the inspection team leader who may
designate a deputy in case the inspection team splits in two parts. The role of these spokesmen
will be crucial. If there are several members of the teams discussing at cross purposes nobody
will know what is actually going on; such a practice would certainly not facilitate the conduct of
an inspection and would most likely cause irritations on both sides as well as delaying the
inspection.

Balance
Another crucial element is to balance the verification interest of the inspection team and that of
the inspected state party which will wish to protect confidential information and information
unrelated to the CWC. On the one hand you need to give sufficient access to parts of the
inspection site to enable the inspection team to have sufficient information to fulfil its tasks and
to report to the Director General of the TS. On the other hand the inspected state party does not
want to give away any confidential business information. However, it is submitted that the
more the confidence between the parties involved can be built up the easier it will be to achieve
the right balance.

General inspection psychology

The above mentioned implies that “inspection psychology” will play an important role.
Naturally, an inspected state party will be especially cautious when an inspection team gets to a
site for the first time. On the other hand the inspection team needs to become familiar with the
inspected site. The first impression will be very important building mutual trust and could
determine to some extent the working atmosphere during an inspection. The inspected state
party is likely to be particularly defensive when the inspection team wants to have access to
sensitive parts of a site or facility. In terms of the chemical industry this may interalia include
pilot plant buildings and research laboratories. However, it will serve both interests if both
sides try to be as cooperative as possible.

General approach to inspections

The less time the inspection team is on-site, the less likely it will be that unrelated information
112 Effective Implementation of the CWC

might be compromised. Thus, the general philosophy from the point of view of the inspected
State Party will be to try to have the inspection team off the site in the shortest possible time.
This is likely to happen if the inspection team feels that it is assisted by the inspected state party
to gain the information necessary to write a report. This will require a good working
relationship between the representatives of the inspected state party and the inspection team
leader and will be helped by building up a store of goodwill with the inspection team.

Build up of goodwill
To build up good will certain steps have to be taken when preparing for an inspection in
accordance with the Verification Annex of the CWC. This includes logistical preparations. The
inspected State Party has to provide working space for the inspection team in which its
members can converse and conduct their meetings. The inspected State Party also has to
provide lodging. As a rule the standard of accommodation that has to be provided for should be
appropriate to regional standards and should be as close as possible to the inspected site. The
inspected State Party has to provide meals and medical care. These issues contribute to the
inspection team´s feeling at ease and to establishing a good working atmosphere.

During inspections at the site one should make sure that the correct specialists are available.
This includes persons being able to produce the right keys at the right time. During an
inspection it is unacceptable to claim that a specific part of a site cannot be inspected because the
responsible person is on holiday or is ill. There must also be somebody able to give advice to
the personnel at the inspected site. If somebody asks a question it will be necessary to respond
in a prompt manner. There must always be somebody who is familiar with the inspected site,
who can answer questions knowledgeably and who knows how to take samples best and
safely. This certainly requires that this person is familiar with the inspected site. For the
efficient conduct of an inspection it will also be necessary to produce documents promptly.
From the experience gained during trial inspections in the UK this proved to be a particularly
important issue. The inability to provide documents rapidly may cause delays and frustration.
As a minimum requested documents must be available before the end of the inspection.

An inspector arriving at a site he has never seen before, whether during a routine (initial)
inspection at a industrial site or during a challenge inspection, maybe confronted with an
enormous plant site and the task of establishing whether or not this plant site is in conformity
with its obligations. Thus, it will be necessary for him to become familiar with the site and its
operations. This may raise conflicts with regard to the inspection mandate and confidentiality
issues. However, there are certain steps an inspected state party can take to minimise the
likelihood of relationships getting strained. For instance if it fights endlessly about access to
areas where loss of confidential information is not a problem this is not likely to be fruitful and
would be frustrating and counter-productive for both sides. An inspected State Party should
refrain from producing problems where there are none.

A challenge inspection will be generally more intrusive than a routine inspection and is likely
to induce feelings of defensiveness on the side of the inspected state party. A natural reaction
would be to restrict access to the site and to information with risk that the situation becomes
heated. To avoid unnecessary conflicts it is necessary to show cooperation during such type of
inspections.

Access
A good rule of thumb is for the inspected state party to grant the access required by the
inspection team until some restrictions apply; the inspected state party notify details of access
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 113

restrictions as and when they apply. This minimises the need to indicate sensitive areas in
advance and, in case of challenge inspections, maximises the use of managed access.

Role and function of the inspection team leader

If one does build up confidence with the inspection team through cooperation then the
inspection team leader’s response is likely to respond to that. If he is not fighting every step of
the way the inspection team leader is more likely to react reasonably if he gets to a part of a site
the inspected state party considers to be sensitive. If everything the inspected State Party has
said up to this point confirms the impression that the inspected site is exactly what has been
declared and is in compliance with it, the inspection team leader is more likely to be sensitive
when he gets to sensitive areas at the site. It is also very likely that he will act more reasonable
at ‘difficult’ parts of the facility or in marginal situations during an inspection. Furthermore, he
will probably be more amenable to suggestions from the inspected State Party for solving
problems. The inspection team leader might ask for something and the inspected state party may
respond that it cannot grant that kind of access or information but offers alternative means to
establish compliance. Such alternative offer will be accepted more likely if the inspection has
proceeded smoothly until that point and if the inspection team has no reason to doubt the
compliance of the inspected site.

The leader of the inspection team has many responsibilities throughout the inspection
process. On the one hand he must be resolute because he must fulfil his task, i.e. establishing
facts about the inspected site regarding ist obligations under the CWC. On the other hand he
must react reasonably to a whole variety of situations which might occur during an inspection.
Thus, it will certainly help if he is in a position to accept guidance from representatives of the
inspected State Party or site. However, he must always retain the initiative and keep track with
his tasks. To maintain a good working atmosphere the team leader should acknowledge co-
operation when received, not only in the inspection report. Taking samples is always likely to
be sensitive and they should only be requested if ambiguities arise during an inspection. If there
are ‘stand-offs’ during an inspection the leader should both proffer and accept possible
solutions to overcome such a situation. Finally the report must assess the cooperation given and
the access granted during the inspection. A fair assessment will enhance working relations
during future inspections.

5. Conclusions
The message of this presentation, I think, is for inspection team leaders and spokesmen and
representatives of the inspected State Party and the inspected site to keep things in perspective.
This will require from both sides a cooperative attitude during the conduct of inspections. From
the point of view of the inspected site this is helped by being sufficiently prepared for the
inspection and being able to respond quickly and adequately to any requests coming up during
an inspection. Both sides should be willing to consider suggestions coming from the other side
and to maintain the spirit of cooperation whenever possible. Flexibility will be another
important element in order to react appropriately to any situation which might occur during an
inspection. Finally, this will require that all involved in trying to stay calm refrain from any
activities which may cause unnecessary tensions.
114 Effective Implementation of the CWC

Today’s Preparative Situation of Japanese Chemical

Industry for Implementation of CWC

Takayoshi Idogaki
Japan Chemical Industry Association

Japanese domestic legislation for implementing the CWC (Law No. 65 Law on Prohibition of
Chemical Weapons and Regulation etc. of Special Chemicals) was enforced on May 5 this year
and the industry is obliged to cooperate with the government in fulfilling its obligations to
comply with the CWC.
It is, in fact, the first experience for the Japanese chemical industry to provide actual
information to an international organization through the government and receive on-site
inspections, by international inspectors, on production, processing and consumption facilities
although the scope of object is limited. While contributing to the betterment of social and human
life through development and supply of useful materials, the chemical industry is facing with
the requirement for solving environmental problems in connection with various phases of its
activities including the treatment of used chemicals. In addition to its effort to comply with laws
and regulations concerning health, safety and environmental protection, the chemical industry is
now unavoidably proceeding with spontaneous activities like so-called ‘Responsible Care
Movement’ to satisfy social requirement. Under such severe circumstances, the obligation to
comply with the verification under the Convention would not be, frankly speaking, much
welcomed by the Japanese chemical industry in spite of full consent to the purpose of the
CWC, since it will add to the existing burden on the industry.
Japan Chemical Industry Association has been, in cooperation with Governmental agencies
and other industrial associations, proceeding with publicity campaign to the industry and the
public on the purpose and significance of the CWC as well as the actions and preparations
necessary for its implementation. The above-mentioned mental reaction of the industry against
the verification regime of the CWC, would partly be attributed to the lack of exact
understanding of the situation. Our experience in these years suggests that a steady and patient
educational campaign is effective for obtaining understanding and cooperation from the industry
in implementing the Convention.
It is quite clear that no chemical weapons are produced or possessed in Japan. It was reported
that a university had possessed in its laboratory CWC Schedule 1 Chemicals in the order of
milligrams to grams for some specific research. Reportedly, end units of various organizations
as shown above, who are now aware of the strict regulations, are proceeding with disposal of
Scheduled Chemicals which are not planned to be used for any fixed purposes.
According to our estimation, there are about 90 declarable facilities for Schedule 2 Chemicals
and about 40 declarable facilities for Schedule 3 Chemicals. Number of production facilities of
Schedule 2 Chemicals is very small, of which most are small size enterprises and complete
research will need further time. Number of declarable facilities for DOC including PSF will
exceed 1.000. In spite of minute investigation activities, a lot of small size enterprises know
little of the existence of the domestic legislation. There seems to be no other appropriate way
than contacting them one by one patiently.
During the last fiscal year, the Association developed reporting formats to facilitate reporting
of various data from enterprises to the National Authority, and distributed to many enterprises
guidebooks explaining how to fill the formats using examples and Q & A’s. This guide book
does not refer to the matters which will be governed by domestic laws and regulations
especially cabinet orders and ministerial regulations concerning the conduct of industrial
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 115

verification (of which the enforcement is subject to solution of various issues concerning
chemical industry by the Hague Conference).
The following guidebooks were also developed and distributed by the respective workshops
of the Association during the same period:

How to receive international inspection;

How to prevent rumours damage caused by industrial verification;
How to prepare for Facility Agreement of Schedule 2 facilities; and
Role and functions of national escort teams and cooperation of facilities with
them.

These materials will be revised, as a project for 1995 fiscal year, to meet the domestic laws
and regulations.
Succeeding to what have been performed in UK and USA, a series of tabletop exercise
ranging over declaration, on-site inspection and negotiation and conclusion of facility agreement
is scheduled in Japan during September 12-14 with the participation of PTS officers. Through
the exercise, we will check whether the model facility agreement appropriately applies to
industrial verification or needs some modifications. As far as the verification of Schedule 2
facilities is concerned, we feel that conclusion of facility agreement based on the initial
inspection and in preparation for subsequent inspections will be very significant for efficient
verification and alleviation of intrusiveness on industry. Relating to Schedule 3 facilities, of
which the conclusion of facility agreement is left to the option of inspected State Party, the
number of such facilities and the size of inspected facilities located in the State Party concerned
will be the basis of judgement on its effectiveness. Supposing that the frequency of verification
being once for ten years, it will be very difficult to predict the pertinence of a facility agreement
to the facility 10 years ahead. For a plant site having many large scale Schedule 3 facilities,
inspection activity within 24 hours will inevitably be limited to focusing on main points only.
The provision of National Escort in the CWC is important. Verification is to show, to the
Organization, the evidence of implementation of the CWC by the inspected State Party, and
enterprises must ensure the fulfillment of the obligation by the State. National Escorts are the
representatives of the State, and at the same time, they must play the role as Tribunes of
enterprises. Representatives of facilities are responsible for protecting confidential information
of the enterprises, but they are not authorized to deny any unreasonable requests from
inspectors or negotiate with inspectors directly. The industry expects National Escorts to be
fully aware of the intention of the CWC; be acquainted with the situation of chemical industry;
have a correct recognition of the importance of secrecy protection; have abundant knowledge
and experience in chemistry, process technology and engineering; have a high ability in
international negotiation; have received necessary training; and have ability comparable to or
even higher than that of long experienced veteran inspectors.
116 Effective Implementation of the CWC

Fourth Session1: Inspection Requirements

Background papers were presented by:

Dr Walker, Arms Control and Disarmament Research Unit; Foreign and Commonwealth Office (UK);
‘CWC Implementation: Inspection Requirements: Lessons from UK Practice Inspections at Industrial
and Government Sites’;
SIPRI-Saskatchewan-Frankfurt Project: ‘The Role and Function of a National Inspector in the National
Authority under the CWC’; ‘Routine Inspections and Inspection Hours’; ‘The Tasks of the National
Authority under the Chemical Weapons Convention’; and ‘Facility Agreements and Model Facility
Agreements under the Chemical Weapons Convention’.

Summary
The discussions in this session dealt with: (a) inspection requirements for a declared facility.
(b) information on the role of a national inspector; (c) how to prepare individual facilities to
receive inspections; (d) confidential business information (CBI) and inspections; and (e)
Facility Agreements (FA). The speakers at the session provided information from the point of
view of an individual facility, a National Authority and the PTS/OPCW.
Dr Trapp reported on the definitions of plant, plant sites, managed access and on how an
international inspection should be conducted. He also reported on the need for FA and model
agreements.
Dr Cooper reported on the different types of inspections to be received: routine inspections,
challenge inspections and investigation of alleged use. For routine inspections the sites will be
selected by the Technical Secretariat (TS). There is no need for a specific report on non-
compliance by a State Party. With regard to challenge inspections these are requested by an
other State Party. There must be grounds for suspicion of non-compliance and there is a need to
ascertain facts regarding this suspicion. It is important to give sufficient access to the inspection
team, but one should not give away CBI unnecessarily— a balance is needed between access
and information. As concerns access, the inspectors should be granted free access until
restrictions are needed. One must notify details of access restrictions as and when they apply,
minimise the need to indicate sensitive areas in advance; and maximise use of managed access.
The best advice for proper inspections is to be open for suggestions from both sides (facility
management and inspection team) and to keep things in perspective.
Mr Idogaki informed the participants that Japan will ratify the CWC 15 Sept. 1995. Japanese
industry is obliged to co-operate with the Government in fulfilling its obligations to comply
with the CWC. The Chemical Industry Association has developed reporting formats to facilitate
reporting of various data from companies to the National Authority. Guidebooks have also been
developed by the Association. The following topics have been distributed: (a) how to receive
international inspection; (b) how to prevent rumours damage caused by industrial verification;
(c) how to prepare for FA of Schedule 2 facilities; and (d) role and functions of national escort
teams and co-operation of facilities with them. These information will be revised to meet the
domestic law and regulations.

Discussion
One of the problems discussed concerned inspection hours. It is not clear whether 96 hours

1 Report by Patricia Radler, Research Assistant, CBW Project, SIPRI

 Conference Proceedings, Bad Homburg 8 - 10 September 1995 117

access (for Schedule 2 facilities)1 implies 96 hours access in a row (24 hours x 4 days) or
whether it implies that the inspection should be carried out within the working hours of the
plant (presumably around 10 hours/day). If the latter, a 96 hour inspection would provide the
inspectors a 40 hour (10 hours/day x 4 day) access to the plant.2 There was a comment in the
discussion that access time had already been solved under another treaty i.e., the CFE Treaty.
Additionally, all chemical facilities are governed by a number of legislative acts on health,
safety and environment which have to be taken into account. The extent of actual access must
be agreed upon (not longer than provided for in the CWC), especially for Schedule 3 facilities
where there is no obligation to conclude a FA. The question was raised as to whether you can
stop the 96 hour challenge clock. It was stated that the Convention text is clear and one cannot
stop an inspection for Schedule 3 so why should one be able to stop it for challenge
inspections. There are specific time lines in challenge inspections.
In regard to inspections in general, the discussion considered questions such as (a) the need
to escort each portion of a split-up inspection team; (b) into how many parts could a team split?;
(c) difficulties of multiple inspections in a single country for the inspected State Party—need for
multiple escorts; and (d) does the Verification Annex (VA) Part II require the inspection team to
return to the point of entry after each inspection. Some states would say Yes, but this would
create major logistical problems for the OPCW.
The discussion further concerned the conclusion of Facility Agreements. The time required to
conclude a FA could be from one day up to a week. From the PTS the assumption is that the
FA negotiations will take 2-3 days, assuming that the Ministries of Foreign Affairs are well
prepared to start with. As concerns the tasks of an NA in the FA issue it was stressed that an
NA is not only an escorting agency, but has a major role in anticipating and resolving disputes
i.e., sensitising firms and negotiating Facility Agreements.
In addition, the discussion examined the evasiveness of a determined non-complier, e.g.
Iraq—UNSCOM. The PTS noted that the UNSCOM’s mandate is quite different from the
mandate of the future Technical Secretariat and is thus not comparable (for example, UNSCOM
has access to the whole country while the future Technical Secretariat only has access to
declared facilities). The PTS agrees that the Inspectorate could get complacent, and that it must
retain the technical and psychological ability to detect non-compliance. This is an issue of
management and training.
Further, the assumption of compliance should not breed complacency or undermine the
inspection process. The IAEA experience was cited, e.g. in Iraq, in which inspectors missed
major violations in the past because of, inter alia, complacency. The PTS implies that the
IAEA’s mandate and CWC approaches are sufficiently different to mean that the OPCW will
not have similar problems to the IAEA. The IAEA’s inspectors are ”bean-counters”, so that
inspections tend to be narrower and emptier. CWC inspectors will be specialised members of a
team, and will have a broader, but more qualitative task to do. The task is to receive an
overview of the inspected facility. The CWC inspectors are special educated for the goal of the
inspection. It was noted that the availability of inspections of adjacent plants within a site is also
different from the IAEA mandate.

1 24 hours access for Schedule 3 and other facilities.

2 for a 24 hour inspection 10 hours (10 hours/day x 1 day).
118 Effective Implementation of the CWC

Fifth Session: Industrial Concerns about Export Controls

The Future of Export Controls under Arms Control

Agreements

Dr. Harald Müller1

Introduction

Export controls have become part and parcel of nonproliferation regimes in the nuclear,
chemical and biological sector. In the form of a exporters' cartel - set up unilaterally by
suppliers - they play also a role in slowing down the spread of missile technology and
hardware. In looking to the future, this paper tackles the following three questions that are at
the core of present discussions about export control policies:

1. Do export controls still make sense?

2. Can and should the "club atmosphere" of current export control groups be
maintained?
3. Should the export control regimes be merged?

1. Do export controls still make sense?

Export controls as an instrument to stem the proliferation of weapons of mass destruction

have been under assault for several years. The first axis of attack has been the complaint by
developing countries that these controls serve the industrial states' alleged objective of
maintaining technological superiority over the Third World; I will deal with this point in the
third part. The second axis of attack pointed to the increasing uselessness of export controls as
a nonproliferation instrument because of the increasing diffusion of technology. Ironically, this
argument has been put forward by liberals in support of a truly multilateral regime2 as well as
by conservatives bolstering their case for military counterproliferation.3

Conceptually, export controls are by no means the cornerstone of nonproliferation. They are
auxiliary instruments to support, or - in the case of the Australian group - to anticipate the
emergence of, multilateral regimes.4 Nonproliferation must rest on the voluntary renounciation
of the incriminated type of weapon by the vast majority of states. In this context, export
controls have played and are still playing an effective and multi-use role.
As an empirical fact, not only nuclear proliferators but also chemical weapons and biological

1 Peace Research Institute Frankfurt, Director of the Non Proliferation Programme.

2 Wolfgang H. Reinicke, Cooperative Security and the Political Economy of Nonproliferation, in Janne Nolan (ed.),
Global Engagement. Cooperation and Security in the 21 Century, Washington, D.C., Brookings 1994, pp. 175-234.
3 Kathleen C. Bailey, Doomsday Weapons in the Hands of Many. The Arms Control Challenge of the '90s,
Urbana/Chicago, University of Illinois Press 1991; idem, Nonproliferation Export Controls: Problems and
Alternatives, in Bailey/Robert Rudney (eds.), Proliferation and Export Controls, Lanham et al., University Press of
America, 1993, pp. 49-56; Benoit Morel, How Effective is the Australia Group? in Bailey/Rudney 1993, pp. 57-64.
4 The one exception is the MTCR which is an exporter's cartel, simply and brutally. As a consequence MTCR
members face major conceptional problems as to the future of this system.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 119

weapons proliferators have seeked external support, that is, the transfer of materials, equipment
and technology to obtain necessary ingredients of their emerging programs. They would not
have run the risk of detection and exposure that is connected with procurement activities abroad
if they could have produced these items easily in their own countries. Technology diffusion is a
valuable keyword, but it should not obscure the basic experience that external procurement is a
typical pattern of proliferation.1

Technology diffusion has been said to undermine export control regimes in a twofold way:
First, it leads to the emergence of new suppliers that are not bound by the rules. And second, it
helps states, though at the cost of some delay, to arrive at results by their own means.

As for the first argument, it is true, but the problem is manageable. The obvious way to cope
with it is to extend the obligations to exert strict control over one's own transfers by way of
multilateral agreements, and/or to extend membership of the export control groups to the new
suppliers. In fact, this is being done, and we have welcomed the first member(s) from the
developing world in some of the groupings (see below). As for the second argument, it is
somewhat disingenious. If "the inevitable" is admittedly delayed and costs enhanced, this
speaks for, not against, export controls as a policy instruments. As an old friend and
nonproliferation expert has succinctly stated: "At my age, delaying the inevitable does not
sound like such a bad proposition". Buying time is, in fact, very much at the core of
nonproliferation policies. Governments change, security concerns become less acute, and the
desire or need for weapons of mass destruction may wither away, with the assistance of
adequate diplomacy from the outside. In the nuclear nonproliferation field, the cases of
Argentina and Brazil are very telling.

Moreover, export controls serve additional functions in the contexts of multilateral regimes:
- They are indispensable means for all members of the respective legal instruments to fulfill
their obligation not to support other countries WMD programs. Agreed rules among those
members capable of supplying items that could be integrated in prohibited activities help avoid
counterproductive competition and create certainty about "right" and "wrong" behaviour in the
market. For this reason, it is absolutely right to state that export controls are facilitating, not
preventing international transfers.
- Properly communicated by suppliers, they may serve as indicators for verifying agencies to
ask for access to facilities with a view to verify Treaty compliance
- In creating a higher degree of transparency, they can enhance the confidence built by the
regime among its member states
- In discriminating between members and non-members, they present a tangible advantage for
members and an incentive for bystanders to join.

For these reasons, export controls are indispensable. Without them, nonproliferation regimes
would lack seriously in terms of confidence-building, compliance, and enforcement. Hence,
they will remain an integrated part of all regimes dealing with controlling the spread of whatever
weapons may be regulated by multilateral arms control and disarmament agreements. In light of
this, it is rather surprising that this instrument should be so controversial among regime
member states.

1 cf. Harald Müller, Matthias Dembinski, Alexander Kelle und Annette Schaper, From Black Sheep To White Angel?
The New German Export Control Policy, Frankfurt, PRIF Reports 32; Aaron Karp, Die Kontrolle von
Rüstungsproliferation in den 90er Jahren: Die Rolle von Exportkontrollen, in Krause (1995), pp. 648-677.
120 Effective Implementation of the CWC

2. Can the "club atmosphere" of export control regimes be maintained?

All market economies work under a fundamental imperative: to export. This applies whether
the politico-economic system is highly centralized and interventionist, as in Japan or France,
corporatist, as in Germany or the Scandinavian countries, or minimum interventionist as the
United States. Business as well as governments have an overwhelming interest in improving
trade balances because this serves domestic welfare and stability. Intervention with the
consequence of burdening economic actors or even preventing them from making profits from
external transfers is in permanent need of justification. The suspicion that export controls are
basically aimed at prohibiting other countries from achieving technological equality misses the
point. Such motivations may apply where a company or a country holds a temporary tech-
nology monopoly and may serve the objective of reaping a transitory extra rent from such
monopoly. The export controls in the sectors of interest for us, however, is characterized by
high competitiveness. This competitiveness is precisely the reason why a coordination of
controls among the competing suppliers became a necessity in the first place, in order to prevent
a run-away competition with most serious detrimental effects on global nonproliferation goals.

It is also true that export controls, as exist, have only a very small overall effect on
international trade in the specific sectors we are talking about. Of course, from the point of view
of the individual company, the additional costs accruing from complex licensing requirement,
the sometimes long delays in obtaining the necessary permits, and the advantages this may
convey in specific case on competitors whose authorities are quicker or more permissive, is
greatly bothering. From the point of view of the complaining developing countries, though, the
statistical effect is hardly measurable.1

The exceptions are well known. The countries suffering from export controls have refused
membership in nonproliferation regimes and are thus impeded in obtaining items that could find
their way into their military programs. India in the nuclear field is the most prominent case in
point. Other export control targets are countries where hard suspicion exists that they may
conduct clandestine programs while pretending to be faithful parties to the respective
conventions. In these cases, the suppliers' caution is in the interest of the overwhelming part of
the developing world as well; we can conclude this easily from the bitter criticism, uttered on all
recent NPT Review Conferences by nonaligned speakers, against conscious or unwitting
assistance rendered by industrialized countries to certain nuclear weapon programs in de-
veloping countries.

Nevertheless, the deep distrust and strong opposition against the present export control
arrangements are visible in all three nonproliferation regimes.2 In the nuclear field, nonaligned
polemics against the NSG have been common since 1980, and have been one of the defining
themes of the NPT Review and Extension Conference in 1995. During the negotiations on the
Chemical Weapons Convention, the G-21 request to scrap the Australian Group`s controls for
trade among parties to the Convention was one of the stumbling blocks even during the late
phase of the negotiation, and it could only be removed by a promise by Australian group
members to consider such a measure in good time once the Convention would have entered into
force. In the current discussions in the Hague, demands to remove obstacles to peaceful
cooperation and denounciations of the Australian group have again become common. And the
process for establishing a system of transparency and verification for the biological weapons

1 cf. Harald Müller, Export Controls: Review of Article III, in John Simpson/Darryl Howlett, The Future of the Non-
Proliferation Treaty, Houndmills/Basingstoke; New York, Macmillan/St. Martins Press 1995, S. 129-143.
2 for a pointed "Southern" view, cf. K. Subrahmanyam, Export Controls and the North-South Controversy, The
Washington Quarterly, Vol. 16, No. 2, Spring 1993.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 121

convention is, again, hampered by the insistence of the nonaligned to neutralize the allegedly
detrimental effect of export controls on peaceful cooperation among Convention parties.

Whence this opposition, if the hard facts do not really support it, and if the security interests
of nonaligned regime members would rather speak for continued controls? The answer lies
mainly in the way the export control systems came into life and have operated since: as "White
Mens' Clubs", exclusively, and with no or little transparency. Nonaligned countries harbour a
deep distrust against the industrialized world that goes back to the dark ages of colonialism. The
particular way the export control regimes were composed, decided and implemented added to
this concern: by the industrialized states alone, and without any consultation, at least with the
more influential and important faithful Third World members of the regime. When the Gulf war
led to a bottom-up review and reform of the regimes - particularly in the nuclear sector - this
pattern was repeated. While somewhat greater transparency is meanwhile achieved - at least
group meetings result in a (however meager) statement by the chair elaborating the main issues
on the agenda and the main decisions - this is obviously not enough to nullify the curious
suspicion of the governments at the "receiving end" of export controls. To make things worse,
loose talk about turning the East-West export control regime by 90 degrees into a North-South
direction after the end of the Cold War has done little to eliminate the fears in the South.1

Nonaligned states have put forward requests for global negotiations on technology transfer
rules. This, they argue, would create a common ground for international cooperation as well as
control, and would sensibly complement multilateral nonproliferation regimes by a multilateral
regime for the transfer of technology. Attractive at face value, this proposition has several
drawbacks. First, there is no forum for negotiations where the (rightful) "targets" of export
controls would not be placed to prevent any sensible result from emerging. The CD harbours
non-parties to the NPT (such as India and Pakistan), and non-signatories to the CWC (such as
Egypt). As painful experiences from the nuclear nonproliferation regime show, such fora are
unlikely to agree on anything: during the two great attempts to elaborate agreed guidelines for
nuclear supply in global multilateral fora - the Committee on the Assurances of Supply of the
IAEA, and the United Nations Conference on International Cooperation in the Peaceful Uses of
Nuclear Energy, divergences between the suppliers and the "hold-outs" about the relation
between supply guarantees by the exporters and nonproliferation commitments by the recipients
led to a perfectly predictable stalemate. The same fate would be faced by global negotiations on
technology transfer.

However, the present situation cannot be maintained for several reasons. For one, it
undermines the minimum consensus that is indispensable for the regimes to function efficiently
and to adapt smoothly to changing circumstances. And, second, as parts of the Third World
enter a more advanced stage of economic development, their collaboration as suppliers becomes
more and more indispensable for the well-being of international export controls. It is obvious
that most new suppliers are not inclined to conduct irresponsible policies. Argentina, formerly a
strong critic of the NSG, is today a member - a striking development. India has repeatedly
collaborated to prevent (or revenge) contributions by Indian companies to Middle East chemical
weapons activities. The point is not so much conscious irresponsibility but an erosion of agreed
rules that regulate in great precision how suppliers should conduct their business.2

For these reasons, a four-pronged strategy should be initiated by suppliers to remedy the
situation short of a global convention on technology transfer: transparency, consultation,
1 National Academy of Sciences, Finding Common Ground: U.S. Export Controls in a Changed Global Environment,
Washington 1991, pp. 118-128.
2 Still a good account of the "new suppliers problem": William C. Potter (Hrsg.), International Nuclear Trade and
Nonproliferation. The Challenge of Emerging Suppliers, Lexington 1990.
122 Effective Implementation of the CWC

cooperation, and assistance.

a) Transparency: A great deal of the suspicion against the "supplier cartel" reigning in the
developing world is based on myth. To counter erroneous perception suppliers should prepare,
first, and update, precise and detailed briefs about the rules, procedures and practices of their
export control systems beyond the mere publications of the formal requirements (as the Nuclear
Supplier Guidelines in the IAEA's Information Circulars). These briefs should be explained
time and again to their partners in the Third World to familiarize them with the reality, rather
than fantasies, of export controls. Secondly, suppliers could provide regular statistics on
approved and denied licenses to Third World destinations, differentiated for regime members
and non-members. This can be done in an cumulative way that excludes the possibility of
sensitive commercial information disclosure, and protects individual supplier countries against a
diplomatic backlash. It should also be possible to summarize the most frequent reasons for
denial. Such transparency should help to create a better understanding for "Northern" practice,
and to enhance confidence that Western export control policies are not unduly impeding Third
World development.
b) Consultations: The supplier countries should consider to invite a group of leading third
world countries for regular consultations on export issues as a kind of "recipient group". They
may meet with the whole supplier group or, alternatively, with a smaller group. What is
important is to restrict membership in the "recipient council" to faithful regime parties.
Otherwise it would be hardly possible to avoid the gridlock of CAS or PUNE, since the targets
of export control cannot be expected to develop a sympathetic attitude towards export
restrictions. The regular consultations would serve to inform developing countries about recent
developments in export policies, to explain the substantial and statistical information proposed
above in more detail, to discuss confidentially some individual cases of denial to create greater
understanding, to jointly consider the situation in various proliferating regions, and to receive
and discuss complaints by the developing countries about export control actions. Alternatively
or as a complement, individual supplier states could establish regular bilateral consultations for
this purpose with leading nonaligned countries.
c) Cooperation: It is in the interests of the suppliers themselves as well as of the stability of
the nonproliferation regime if new suppliers are promptly integrated into the various supplier
groups; this has already happened with countries like Argentina and South Africa. The
incremental opening of the Australian group to former Warshaw Treaty Organization members
is another case in point (The Nuclear Suppliers Group was an East-West institution from the
beginning). Efforts are being made to explore possibilities to slowly expand the reach of these
organizations further. It is essential to continue with this effort without, however,
compromising the privacy as well as the efficiency of these institutions. The socializing effect
of being "in" instead of "out" should not be underrated. In including a sizable number of
export-capable developing countries will in due time dilute the traditional image of the NSG and
the Australian Group as "white mens' clubs".
d) As just stated, efficient export control systems in new member states are an inevitable
condition for entry. Such systems may not emerge spontaneously. For this reason, supplier
states would be well advised to set up assistance programs for those countries interested and
willing to take the trouble of creating reliable control systems. Such assistance has been
rendered, without much adoo, to successor states of the Soviet Union and other former WTO
member states; the need to help in the export control sector during the difficult transition from
centrally planned to market economy was virtually self-explaining. If assistance is possible in
those cases, nothing should stand in the way to extend this practice southwards. In fact, Japan
has already taken efforts to help its neighbours in East Asia and the ASEAN region in this re-
gard. It would certainly be wise to coordinate such assistance in the export control institutions.
Of particular value would be the participation of new market economies that have fresh
experience with the difficulties and possibilities of creating such systems from scratch.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 123

3. Should the export control regimes be merged?

The merging of the nonproliferation regimes, or the export control systems, or both, strikes
me as a bad idea whose time has come. It has been pushed forward from two angles: in the
discussion about the follow-up system of COCOM, one idea was to create a super-export
control organization that would join the rules and procedures of COCOM with those of the
NSG, the Australian Group and the MTCR; the above quote of "turning COCOM from West-
East to North-South" emerged from this context. The second origin of the debate are efforts to
strengthen the hands of the United Nations Security Council by appointing a "nonproliferation
czar", by establishing a nonproliferation department under the auspices of the UNSC, or by
merging existing and future nonproliferation organizations under the immediate control of the
Council. If such a course were chosen, the merger of the export control groups would be a
logical corollary.1

While the intention to strengthen the institutional structure of nonproliferation policy is

laudable, the means strikes me as less than useful if not pernicious. The objects of control in the
various export control fields are substantially different and thereby need quite different and
specified "therapies".

The nuclear sector is a well defined and relative small branch of the civilian economy. Control
relates overwhelmingly to a well-defined, closely circumscribed set of fissile or fusionable
materials and the means to produce and handle them. In addition, there is a powerful strand of
public opinion that would prefer prohibiting nuclear exports altogether; none of the other
industries concerned is facing this sort of absolute challenge.
The MTCR is dealing with an even more confined and specialized sector, and one in which
the military and civilian uses are even harder to distinguish than in the nuclear case. A powerful
space-launch rocket contains always the potential to serve as a ballistic missile carrier for a
WMD warhead. Controls in this field, thus, are different from the nuclear (and nuclear dual-
use) ones, and the almost inextricable relationship between civilian and military uses of missiles
and rockets has so far prevented conceptually the establishment of a multilateral regime that
would contain the customary cooperation clauses.
The chemical industry, in stark contrast, is one of the backbones of each modern balanced
industrial economy. Where it is well established, it comprises thousands of facilities,
substances, processes, products, and sorts of equipment. More than in the other sectors,
international trade is an uncontested necessity, and in the deepest interest of all supplying
countries. Controls, thus, pose again different requirements.
In the biological sector, again, the transition from civilian to military activities can be
extremely quick and, given the nature of the field, can be effected with little equipment in very
small places. It is not yet completely clear what contribution international transfer really make to
biological weapons programs, and if export controls in this extremely difficult field can make
more than an utterly marginal contribution; for principled reasons, though, it is reasonable to
have them in place, anyway.

As the fields for control are different, it makes sense to use specialized arrangements without
bureaucratic overlay. It is justifiable to pull biological and chemical export controls together, as
both overlap in the pharmaceutical and agrotechnical branches of chemistry. There is no reason
whatsoever for further concentration. The arrangements would loose their flexibility and
1 Derek Paul u.a.(Hrsg.), Disarmament's Missing Dimension: A UN Agency to Administer Multilateral Treaty,
Canadian Papers in Peace Studies 1, Toronto 1990; Leonard S. Spector/Virginia Foran, Preventing Weapons
Proliferation. Should the Regimes be Combined?, Muscatine, Iowa, The Stanley Foundation, 1992.
124 Effective Implementation of the CWC

adaptability, they would become more expensive and bureaucratic (it is thus inexplicable why
observers believe that transaction costs would decrease!) 1 We should learn from the decay of
centralized economies that centralization is not always conducive to enhanced effectiveness;
even modern conglomerates give their branches more and more independence in decision-
making in order to enhance flexibility and efficiency.

To oppose merger is no reason to object to closer coordination. To the contrary, insights

gained from one regime should be transferable to the others. Of course, this happens already,
for example, in domestic intelligence services and custom and export licensing agencies that
bring together knowledge, for example about the procurement activities of certain states; overall
assessments of the security threat emerging from these states are built from these insights.
Member states of export control systems can be expected to insert such experiences into the
working of the groups.

Conclusion

An overview paper concerning export controls cannot conclude without emphasizing the
importance of the government-business interface. This is most pertinent to catch-all procedures
for unlisted items; without business cooperation, catch-all clauses just cannot work. Export
controls are often described, erroneously, as a purely governmental task. But like in all legal
systems they do not function predominantly by the threat of sanctions, they function by the
voluntary compliance of the vast majority of companies. Private business is not usually inclined
to foster weapons of mass destructions abroad; the Imhausens of this world are relatively rare
exceptions. On the other hand, export controls are alien and cumbersome to business; for this
reason, the interface must be cultivated. Extensive and regular information about changes in re-
gulation and warnings about ongoing illegal procurement activities; seminars to familiarize
company staff with handling export control problems; simplified procedures and
understandable forms - all this has to be carefully implemented by governmental authorities. In
Germany, the requirement that companies appoint an export control executive who bears
personal responsibility for compliance with the law was a definitive improvement, because the
stipulation defined unmistakably the crucial joint in the government-business interface.

Export controls are here to stay as a building block of all nonproliferation regimes. To bridge
the North-South gap, to keep the institutions viable, within which export controls are coordina-
ted, and to cultivate government-business relations with a view to enhance the efficiency of
export controls are important tasks for the future.

1 Peter Rudolph, Internationale Exportkontrollregime als Instrument der Nonproliferationspolitik, in Joachim

Krause (ed.), Rüstung statt Entwicklung? Sicherheitspolitik, Militärausgaben und Rüstungskontrolle in der Dritten
Welt, Baden-Baden, Nomos 1995, pp. 631-648, part. 644ff.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 125

Industry Preparation for the CWC Entry into Force:

An Indonesian Experience

Susilo Martodiwirjo, Dipl. Ing.

Head Federation of Chemical Industries of Indonesia and A Member of Indonesian National Committee for the
Preparation of the Implementation of the CWC

I. Introduction

1. This paper addresses issues concerning chemical industry preparation in Indonesia during
the run up to the expected entry into force of the Chemical Weapons Convention (CWC). it
describes the steps taken in the preparation particularly the importation system in Indonesia
relevant to the future implementation of the CWC, i.e. the role of the Government in chemical
industry data gathering as the most crucial element to the future implementation of the CWC.
The collection of chemical data imported to Indonesia through the preshipment inspection
system is being considered by the National Committee as one of the ways in data base
formulation for the purpose of making declaration under the CWC in the future.

2. This paper addresses also in general, the relevant industries in Indonesia relating to the
preparation of the CWC´s entry into force. It reflects slightly only on this particular issue,
however, it may give participants, picture on the relations between the pre-shipment inspection
system with the present government’s efforts in preparing for the enter into force of the CWC
in Indonesia.

II. Preparation for ratification

3. In the light of the enthusiasm shown by the international community to renounce this class
of weapons, shortly after the conclusion of the CWC negotiation in 1992, the Government of
Indonesia, i.e. the Department of Foreign Affairs took a number of measures as the first step to
prepare for the possible future implementation of the CWC. A report on the conclusion of the
CWC and the signing of the Convention by Indonesia, including recommendations for
initiatives to be taken by the Government to prepare groundwork for the ratification of the
CWC, was submitted and endorsed by the highest authority.

4. In order to expedite the preparation for Indonesia’s future adherence to the CWC, in
October 1994, the Government has established a National Committee for the Preparation of the
Implementation of the CWC, a wider inter-agency to include the inter-Departmental Committee
and private chemical industries concerned. The Committee has been assigned with various
tasks, inter-alia to establish a National Authority; appraise chemical industries of possible
changes to domestic law to incorporate the external legal obligations under the Convention; take
a number of practical steps to establish a national verification system that is able to
accommodate the implementation of an international verification system of the CWC; establish a
data base system incorporating Indonesia’s chemical industries to facilitate the CWC
verification system; formulate a draft legislation for future submission to the Parliament by the
National Committee through the Department of Foreign Affairs and a draft of Presidential
Decree for the establishment of a National Authority; conduct national government industry
126 Effective Implementation of the CWC

workshop(s) with a view to disseminating information to industry and other private sectors
concerned on the possible future involvement of national chemical industry with the CWC.

5. As a country that has no chemical weapons, most of practical steps taken were directed
toward ensuring any activities not prohibited under the Convention undisrupted after the entry
into force of the CWC for Indonesia. For this purpose at the present stage of preparation, the
National Committee is working closely with PT Surveyor Indonesia and a number of key
persons that may be involved in the future implementation of the CWC with a view to designing
and conducting data collection particularly of imports and exports of chemicals covered by the
Schedules of the Convention.

6. Under the terms of Article VI any State Party is obliged to submit initial declarations
regarding on relevant chemicals and chemical facilities to the OPCW within 30 days of the
Convention entering into force for it. State Parties are further obliged to submit subsequent
annual declaration of such data to the OPCW in accordance with the Verification Annex of the
Convention. For a State Party that has no chemical industry or has relatively undeveloped
chemical industry, the declarations to be made under Article VI will be straightforward. For a
state that has significantly developed chemical industry, the initial and subsequent annual
declaration to be made and submitted to the OPCW will be more complicated.

7. Members of the National Committee feel that more intensive undertakings have to be
conducted by the Committee to gather all relevant chemicals for their future inclusion in the
verification system to the CWC. Based on the preliminary data collection, agrochemical
industry, organic chemical industry and pharmaceutical seemed to be foremost covered by the
reporting verification regime of the Convention. These industries have developed rapidly within
the last several years. A deeper look at these industries, however, reveals the fact that they
mostly consume rather than produce chemicals relevant to the verification regime of the CWC.

8. Since the development priorities in agrochemical industry were set to cover among others
phosphate industry namely, optimisation and additional TSP and development of mixed
fertilizer plants, the National Committee have also envisaged a possible application of the
verification regime once Indonesia becomes party to the CWC. Preliminary discussions
conducted among members of the National Committee on the possible application of the
verification system found it necessary to set an ad-hoc team to be given tasks to collect data of
this particular chemical industry. The team was entrusted also with the tasks to disseminate
information concerning the possible involvement of this group of industry to the CWC.

9. Development priorities in Indonesia’s pesticide industry in the coming years will cover
inter alia support for the development of R&D for product diversification, invention of new and
acceptable types of pesticides, research on quality improvement and development of up-stream
commodities. To prepare this group of industry to possible changes in domestic law, the
National Committee has approached this group of industry through the existing Pesticide
Industry Association. Since the group of industry involved mostly in the formulation of
chemicals for the domestic market, the Committee has focused its attention on the imports of a
number of chemicals by importers and suppliers to the industry. A simple domestic reporting
system based on the guidelines of the OPCW was elaborated by the Committee for possible
adoption and application when the CWC enters into force in Indonesia.
10. The National Committee has planned also to have careful look at the organic chemical
industry for possible finding of chemicals relevant to the verification regime of the CWC. A
number of petrochemical companies will also become the subject to the National Committee’s
scrutiny. Initiatives have also taken to scrutinize medical industry for the same purpose.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 127

11. In order to familiarize with practical problems faced by countries in preparing the CWC
entry into force for Indonesia, with the co-operation of the PTS-OPCW, Indonesia convened a
Regional Seminar on the National Implementation of the CWC, held in Jakarta, 28-30
November 1994. This Seminar was attended by 32 countries in the region and has provided to
all participants, exchange of views of each has problems in preparing the smooth entry into
force of the CWC in their respective countries. In this seminar, the Organizing Committee has
been assisted by the PTS-OPCW, private institutions as well as other states in the region,
particularly Australia which contributed its expertise and experience in chemical industry
verification through on-site verification simulation.

III. The role of public surveyor

12. Indonesia has applied pre-shipment inspection as the national importation system since
1985. The main purpose of the system is to facilitate the handling of goods in the overall
international trading activities, particularly in making incoming flow of cargo faster and less
bureaucratic. It serves also the purpose of verifying the quantity, quality, values and customs
code and the tariff rate of the imported goods for assessment of possible liability to import
duties and taxes. It meant also to certify that certain goods are eligible for import.

13. PT. Surveyor Indonesia is a state owned enterprise which was established in 1991. The
company has been accorded with a mandate by Indonesia Government to implement the pre-
shipment importation system soon after its inception. It implies that PT. Surveyor Indonesia
has the data on Indonesian overall import at its disposal including list of exporters, importers,
quantity and type of the imported goods, port of disembarkation as well as ports of origin.

14. In 1993 and 1994, more than 90% of all importation made were inspected by PT.
Surveyor Indonesia. This year the percentage might be lesser due to some changes in the
Government policy, however, more than 70% of all importation will be inspected by PT.
Surveyor Indonesia through the system of pre-shipment inspection. The remaining 30% of the
importation are inspected by Customs agencies. It implies therefore, that beside available data at
the disposal of PT. Surveyor Indonesia, there are other data available at the disposal of
Customs and other importing agencies as well as at the Statistical Bureau of the Government of
Indonesia.

15. The National Committee has started the co-operation with PT. Surveyor Indonesia to
gather chemicals imports data for the purpose of formulating and submitting declaration of
relevant chemical industry under the CWC. A number of PT. Surveyor Indonesia personnel
forms an integral part of the National Committee and have embarked upon practical measures to
identify activities that may be eligible for future declaration. The source of relevant data at the
disposal of PT. Surveyor Indonesia constitute one of the basic data for the future ‘National
Authority’ to complete initial as well as annual declaration for submission to the Technical
Secretariat of the OPCW.

IV. Industrial Condition

16 Transfer of goods (import and export) from and into Indonesian territory are complied
with the existing rules of Government. Every industry in Indonesia has to obtain Government
license of reproduction of any goods or services with certain limits in its production capacity.
Those transferred goods are monitored by Government through pre-shipment inspections and
reported by industries concerned (importers and exporters). Data of such reports are handled by
128 Effective Implementation of the CWC

respective Departments such as Department of Trade, Department of Industry, Department of

Health, Department of Defence etc. Thus, Indonesian Government, by far, has monitored any
items transferred into its territory and, vice-versa, industry has always submitted its reports to
the Government.

17. With the regulations in place, the Government should be able to gather information
concerning chemicals consumed for or produced by industries. The Indonesian chemical
industry is mostly supervised by Department of Industry (for general chemical industry) and
Department of Health (for pharmaceutical and drugs industry). However, the lack of systematic
and accurate reported data of a running production of a factory which is scattered in various
governmental agencies, has caused difficulties in finding precise quantities of relevant
chemicals in order to prepare for the implementation of the Convention. In order to overcome
such difficulties, Indonesian Government through the National Committee is seeking a co-
operation with relevant consultants recommended by PT. Surveyor Indonesia for data collecting
throughout Indonesian jurisdiction.

18. Based on the result of an initial survey conducted by the National Committee, it was
indicated that limited quantities of Schedule 2 chemicals have been imported. Imports of some
schedule 3 have been identified as well, consumed in a number of plants for production of
pesticides. These data has been monitored and reported to the authorities concerned even long
before the existence of the National Committee. This data has to be systematized as required for
declaration purposes once Indonesia ratifies the Convention.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 129

Transparency Mechanism for the Transfer

of Chemicals Compatible with the Complete
Ban of Chemical Weapons

Dr. Félix C. Calderón1

I. Introduction

One of the issues before the Preparatory Commission for the Organization for the Prohibition
of Chemical Weapons ("the Commission"), established to carry out the necessary preparations
for the effective implementation of the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and On Their Destruction ("the
Convention"),2 is the task of preparing for the implementation of rights and obligations under
Article XI of the Convention. Although this task is not explicitly stated in the mandate of the
Commission,3 the discussion on Article XI implementation is increasingly resembling a North-
South dilemma due to the divergence of views in this regard.4

The Convention, primarily devoted to eschew forever all chemical weapons, maintains a
delicate balance of obligations and rights to be complied with by States Parties. The obligations
relate mainly to prohibitions set forth in the Convention, in particular under Article I, which will
lead to the elimination of all existing chemical weapons (including old and abandoned ones) and
the prevention of proliferation of them in the future. On the other hand, the rights are basically
focused on activities related to purposes not prohibited under the Convention, as defined in
Article II, paragraph 9. Those rights are stated in broader terms in Article VI, paragraph 1,
according to which "[e]ach State Party has the right, subject to the provisions of this
Convention, to develop, produce, otherwise acquire, retain, transfer and use toxic chemicals
and their precursors for purposes not prohibited under [the] Convention," together with Article
XI, paragraph 1, and Article VI, paragraph 11, both of which aim at promoting "the economic
or technological development of States Parties, and international cooperation in the field of
chemical activities for purposes not prohibited under [the] Convention including the
international exchange of scientific and technical information and chemicals and equipment for
the production, processing or use of chemicals."

Additional provisions strengthening those rights are: the eighth preambular paragraph of the
Convention, stating that achievements in the field of chemistry should be used exclusively for
the benefit of mankind; the ninth preambular paragraph which states the desire to "promote free
trade in chemicals as well as international cooperation and exchange of scientific and technical

1 Legal Adviser to the Preparatory Commission for the Organization for the Prohibition of Chemical Weapons;
formerly Acting Head of the Peruvian delegation to the Conference on Disarmament in Geneva during the final years of
negotiations of the Convention. The views expressed here are those of the author and do not necessarily represent the
position of the Preparatory Commission.
2 The Statute of the Commission is contained in the Resolution Establishing the Preparatory Commission for the
Prohibition of Chemical Weapons adopted by signatory States of the Convention at the Signing Ceremony in Paris 13 -
15 January 1993.
3 See: the tasks enumerated in the Text attached to the Paris Resolution.
4 See: the African Non-Paper on Article XI distributed in the Expert Group on Technical Cooperation and Assistance
on 29 July 1994; the Statements of the delegations of Bulgaria, Iran and Mexico distributed at the Tenth Session of the
Commission; and the Statements of the African Group (PC-X/14), the Asian Group (PC-X/18), the Western European
and Others Group (PC-X/24) and Austria (PC-X/25), also at the Tenth Session of the Commission.
130 Effective Implementation of the CWC

information in the field of chemical activities for purposes not prohibited under [the]
Convention in order to enhance the economic and technological development of all States
Parties;" and Article VIII, paragraph 21(g), which concerns the power of the Conference of the
States Parties, the highest political organ of the OPCW, to "foster international cooperation for
peaceful purposes in the field of chemical activities."

It is indeed this delicate balance of basic mandatory and implementable sets of obligations and
rights which make the Convention unique in the multilateral disarmament field and makes it
attractive to any State in the international community. It equally represents the gravitational
force for Convention's universality in much stronger and more appealing terms than the Treaty
on the Non-Proliferation of Nuclear Weapons ("NPT") and the Convention on the Prohibition
of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin
Weapons and on their Destruction ("BTWT").

It appears so far that the approach to establish the Convention's regime to ensure the exercise
of the rights stipulated in it, in particular that concerning promotion of unrestricted transfer in
chemicals, would differ from the one currently practised in the NPT which in the past 25 years
has been the object of some criticism.1 The prospect of seeing some measures as a means for
unilateral or unjustifiable discrimination between States Parties or a disguised restriction on
transfers seems unthinkable from the point of view of the successful implementation of the
Convention. However, nobody should deny that further measures should be adopted by States
Parties with the view to promoting transparency, confidence-building and trust among them. In
short, States Parties to the Convention, without misreading the general obligations prescribed in
Article I of the Convention and its complementary provisions, seem to be in a better position
not to allow Article XI to become subject to the same criticism that Article IV of the NPT has
faced throughout the existence of that treaty. This is not only because of the seemingly healthy
expansion of the chemical industry world-wide (which has led to increased production, prices
and profitability2) and compared to which the nuclear industry is a pale competitor, but because
of the desirability to prevent disputes concerning non-compliance with rights consecrated by the
Convention.3

Since at the end of the destruction period the Convention will put all States Parties on equal
footing (in that chemical weapons States ("haves") will become "have-nots"), one of the main
challenges the Commission now faces is to develop a predictable and reliable regime on
transfers4 for recommendation to the Conference of the States Parties of the OPCW at the First
Session. Such a regime on transfers would render possible a smooth and generally accepted
implementation of Article XI while at the same time ensuring the non-proliferation of chemical
weapons in full consistency with the object and purpose of the Convention. The difficulties
encountered in the implementation of other arms control and disarmament agreements must
serve as an incentive if the intention of the current signatory States and potential States Parties
of the Convention is not to use limitless security considerations as a barrier to impede
developing countries' access to science and technology. This is equally so if the intention is not
to justify commercial restrictions. In fact, one may expect from signatory States a like-minded
approach, nurtured by the common goal of using chemistry exclusively for the benefit of
mankind.
In the following pages some comments on the Conventions' provisions on the transfer of

1 The indefinite extension of the NPT on 12 May 1995 is far from pre-empting further criticism in this regard.
2 The U.S. chemical industry, for instance, had a 6% growth in production in 1994. See: C&EN, 26 June 1995.
3 One of the problems of the BTWT is precisely how to implement its Article X concerning the international
exchange of scientific and technological information and bacteriological agents for the prevention of disease or for
other peaceful purposes.
4 Given its broader connotations, it is preferable to use the term "transfer" instead of "trade" in this paper.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 131

scheduled chemicals will be submitted. This will be follow by an overview of the work done so
far by the Expert Group on Technical Cooperation and Assistance1 to prepare for the
implementation of obligations under Article XI. Thereafter some ideas will be advanced on a
possible solution to the divergence of views in the Expert Group in this regard. Lastly, together
with the conclusions, some comments will be made on the future work which can be expected
from the Expert Group on Technical Cooperation and Assistance in order for that Group to
fully discharge its responsibilities regarding Article XI implementation.

II. The transfer of chemicals under the Convention

One underlying principle of the Convention is that no provision of it can impede the legitimate
transfer of chemicals between States Parties for purposes not prohibited under the Convention.
This is fully consistent with Article VI, paragraph 2, in that "[e]ach State Party shall adopt the
necessary measures to ensure that toxic chemicals and their precursors are only ... transferred
... within its territory or in any other place under its jurisdiction or control for purposes not
prohibited under this Convention."2 As an immediate consequence, the prohibitions on transfer
of chemicals will, in principle, be applicable by States Parties against States not Party. One can
argue that the general obligation under Article I, paragraph 1(d) 3 provides the basis for setting
up a more stringent regime for transfers to States not Party than the regime contemplated in the
Convention for transfers between States Parties.

Vis-à-vis these obligations, the wording of paragraph 1 of Article XI (which is identical to the
wording of paragraph 11 of Article VI) then becomes relevant because it sets forth obligation of
States Parties to implement the provisions of the Convention "in a manner which avoids
hampering the economic or technological development of States Parties ... for purposes not
prohibited under [the] Convention". It is also relevant to point out that the above mentioned
rights stated in paragraph 1 of Article VI are aimed at States Parties as the main beneficiaries as
long as the toxic chemicals and their precursors are transferred for purposes not prohibited
under the Convention.

The fact that agreement on Article XI was only reached in the very last stage of negotiations
in Geneva in the summer of 1992 once the Australia Group4 agreed to make a complementary
statement in the plenary of the Conference on Disarmament5 is in itself highly demonstrative of
the unavoidable linkage between Article XI implementation and the removal of transfer barriers
between States Parties. The eagerness of delegations to the Conference on Disarmament at that
time to find a compromise on Article XI was such that they almost forgot to include in the
Verification Annex a set of provisions regulating the transfer of chemicals to States not Party.
Although transfer to States not Party was discussed in the Group on Economic and
Technological Development until June 1992,6 the first revised version of the final draft of the
1 This Expert Group, in accordance with the decision of Working Group B (document PREPCOM/II/WG/1), met for
the first time from 24 to 28 May 1993.
2 See: Article XI, paragraph 1.
3 According to Article I, paragraph 1(d), States Parties undertake "never under any circumstances ... to assist,
encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention."
And Article VII, paragraph 1 (a, b, and c) further stipulates the mandatory obligation for States Parties to extend those
prohibitions to any natural or legal person.
4 The Australia Group (chaired by Australia) is an informal forum of States established in 1984 and its membership
presently consists of 28 States. Their decisions are not legally binding but they constitute firm political commitments.
5 The Statement of the Australian representative to the Conference on Disarmament on 7 August 1992 includes, inter
alia, the undertaking of the members of the Australia Group "to review, in the light of the implementation of the
Convention, the measures that they take to prevent the spread of chemical substances and equipment for purposes
contrary to the objectives of the Convention, with the aim of removing such measures for the benefit of States Parties
to the Convention acting in full compliance with their obligations under the Convention." CD/1164, 7 August 1992.
6 CD/CW/WP.400/Rev.1, 22 June 1992.
132 Effective Implementation of the CWC

Convention contained no provision in that respect. Thanks to a last minute proposal presented
by Peru on 27 July 1992, the provisions on transfer to States not Party were added to the
Verification Annex in Part VII, section C, and Part VIII, section C.1

Having said that, Part VI, Section A, paragraph 1, of the Verification Annex explicitly
prescribes that "A State Party shall not ... transfer [Schedule 1 chemicals] outside its territory
except to another State Party." Section B, paragraphs 3 and 4 of the same Part VI clearly
restricts the transfer of Schedule 1 chemicals between States Parties "only for research,
medical, pharmaceutical or protective purposes"2 in "types and quantities ... strictly limited to
those which can be justified for such purposes."3 Although it is not stipulated in the Convention
the understanding of this prohibition should be that any import by States Parties of Schedule 1
chemicals will have to come as well from another State Party. Furthermore, Section B,
paragraph 5, of Part VI establishes the obligation of exporting and importing States Parties to
notify the Technical Secretariat of the transfer 30 days before the transfer actually takes place.
And the following paragraph 6 establishes the obligation of each State Party to make a detailed
annual declaration regarding transfers during the previous year. The declaration shall be
submitted not later than 90 days after the end of that year and shall, for each Schedule 1
chemical that has been transferred, include: the chemical name, structural formula and Chemical
Abstracts Service registry number, if assigned; and the quantity acquired from other States or
transferred to other States Parties. For each transfer the quantity, recipient and purpose shall be
specified.

With the exception of the first three years after entry into force of the Convention, transfer of
Schedule 2 chemicals by States Parties to States not Party is also forbidden as well as their
import. Nevertheless, during that interim three year period, Section C, paragraphs 32 of Part
VII of the Verification Annex prescribes the adoption of the necessary measures, including an
end-use certificate, to ensure that the transferred chemicals shall only be used for purposes not
prohibited under the Convention.4 In addition, in accordance with Part VII, Section A,
paragraph 1, States Parties are under the obligation to include in the initial and the annual
declarations (to be provided pursuant to Article VI, paragraphs 7 and 8) the "aggregate national
data for the previous calendar year on the quantities ... imported and exported of each Schedule
2 chemical, as well as a quantitative specification of import and export for each country
involved."

The regime established for Schedule 3 chemicals is defined in Section C, paragraph 26 of

Part VIII of the Verification Annex. In contrast with transfer of Schedule 2 chemicals, it is
permissive to the point that, theoretically speaking, export and import of Schedule 3 chemicals
would not be disrupted unless the State not Party does not comply with the requirements
demanded by the State Party in accordance with paragraph 26. That is to say that the transferred
chemicals shall only be used for purposes not prohibited under the Convention.5 Similar to
1 See: CD/CW/WP.421, 27 July 1992.
2 Section B, paragraph 3 of Part VI of the Verification Annex.
3 See: Part VI, Section A, paragraph 2, of the Verification Annex which provides the legal context for the
implementation of Part VI, Section B.
4 "Inter alia, the State Party shall require from the recipient State a certificate stating, in relation to the transferred
chemicals:
a) That they will only be used for purposes not prohibited under this Convention;
b) That they will not be re-transferred;
c) Their types and quantities;
d)Their end-use(s); and,
e) The name(s) and address(es) of the end-user(s)."
5 Paragraph 26, Section C, of Part VIII refers to, inter alia, a certificate to be provided by the recipient State stating,
in relation to the transferred chemicals: "(a) That they will only be used for purposes not prohibited under this
Convention; (b) They will not be re-transferred; (c) Their types and quantities; (d) Their end-uses(s); and (e) The name(s)
and address(es) of the end-users(s)."
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 133

Schedule 2 chemicals, the measures stipulated under paragraph 26 are not exhaustive, the term
"inter alia" opening the possibility for introducing further measures.1 Also, and again similar to
Schedule 2 chemicals, "[t]he initial and annual declarations to be provided by States Parties
pursuant to Article VI, paragraphs 7 and 8, shall include aggregate national data for the
previous calendar year on the quantities ... imported and exported of each Schedule 3 chemical,
as well as a quantitative specification of import and export for each country involved."2 These
measures can eventually be strengthened five years after entry into force of the Convention in
accordance with paragraph 27, Section C, Part VIII.

Finally, as regards transfer of discrete organic chemicals subject to Part IX of the Verification
Annex, the absence of any provision leaves to the discretion of States Parties the measures
needed to ensure their transfer, in particular towards States not Party, in conformity with the
object and purpose of the Convention. This shall be done without losing sight of the fact that
implementation of the verification measures under Part IX for States Parties shall start only at
the beginning of the fourth year after entry into force of the Convention, yet States Parties will
be under the obligation to present initial declarations. And these initial declarations will include
a list of all plant sites that produced by synthesis during the previous calendar year more than
200 tonnes of unscheduled discrete organic chemicals, or comprise one or more "PSF-plants"
which for the same period produced by synthesis more than 30 tonnes of unscheduled discrete
organic chemicals containing the elements phosphorus, sulphur or fluorine.

III. The Commission's preparatory work on Article XI

Originally, Article XI implementation was not included in the mandate of the Commission as
set forth in its Statute, the Paris Resolution. One can assume that this happened because the
tasks of the Commission specified in the Text attached to the Paris Resolution have to be
fulfilled anyway (they are basically compulsory) in order to comply with Convention
requirements at the time of entry into force otherwise the Convention will suffer in its
implementation.3 This is not necessarily the case of the provisions contained in Article XI.

The absence of any specific reference to Article XI in the Paris Resolution perhaps explains
why, at the commencement of the Commission's work (immediately following the close of its
First Session) Article XI implementation was not before the Commission. Further, in the
twelve tentative clusters of issues to be addressed by the Commission (contained in the "Draft
Recommendation on Programme of Work of the Preparatory Commission,"4 and approved by
the Commission at its Second Session5) no reference was made to Article XI either.6

Nevertheless, some weeks later, Working Group B agreed at its first meeting during the
Second Session (20 April 1993) to consider as one of seven issues for the Group's further
work the "tasks related to the implementation of the provisions of the Convention on technical
cooperation and assistance".7 The Expert Group on Technical Cooperation and Assistance was

1 Section C, paragraph 27 of Part VIII of the Verification Annex.

2 Part VIII, Section A, paragraph 1.
3 See: Félix Calderón, The Preparatory Commission for the Organization for the Prohibition of Chemical Weapons,
Section III.1, presented at the Hague Academy of International Law Colloquium on The Convention on the Prohibition
and Elimination of Chemical Weapons: A Breakthrough in Multilateral Disarmament, forthcoming in the Recueil de
Cours de l'Académie de Droit International de la Haye (Colloques 1994).
4 PREPCOM/II/WGA/WP.5.
5 PREPCOM/II/9, paragraph 9.
6 In fact, the tentative cluster on assistance was expanded by the Chairman of the Expert Group on Technical
Cooperation and Assistance in a discussion paper used for the first meeting of that Group. See: PC-III/B/WP.4 ,
paragraph 3, dated 28 May 1993.
7 PREPCOM/II/WGB/1, subparagraph 3(g).
134 Effective Implementation of the CWC

established concomitantly under the Chairmanship of India. It further clarified those tasks at its
first meeting. In the Chairman's paper attached to the Expert Group's Initial Report, several
issues were mentioned under different headings: destruction of chemical weapons; legal and
implementation; assistance and protection; and economic and technological development.1
However, in the second meeting of the Expert Group (August 1993), it was agreed that the
Group would start to consider Article XI implementation issues in 1994 with the comment that
"[t]he timing of the discussion does not indicate the relative importance of any issue."2 Thus,
the Expert Group's attention during 1993 was largely focused on issues relating to provision of
assistance under the Convention and assistance in the destruction of chemical weapons.3 At its
third meeting held at the beginning of December 1993, the Expert Group decided to add to its
future work the following specific issues regarding Article XI:

(a) "to identify obstacles which are incompatible with obligations undertaken under the
Convention and which impede or restrict international cooperation in the field of trade, or in the
scientific and technical exchange of information among States Parties in the field of chemical
activities not prohibited under the Convention and to suggest proposals for action to be taken
for the removal of those obstacles at all levels"4; and

(b) "to identify measures to promote international cooperation in the chemical field,
including consideration of the possible role of the Executive Council and the Technical
Secretariat in the implementation of such measures."5

After a preliminary discussion in February 1994, 6 the Expert Group recognised in its Fourth
Report dated 20 May 19947 that there is "a divergence of opinions on whether all national
preparations for implementation of obligations under Article XI, particularly measures to review
national regulations in the field of trade in chemicals, should be finalised before or after entry
into force of the Convention for a State Party".8
The variance of Member States' opinions on Article XI implementation became more
pronounced after an important attempt at reconciliation was made by the Chairman of the Expert
Group during the sixth meeting on 27-29 July 1994. In effect, the Chairman prepared a draft
paper entitled "Implementation Procedures for Article XI and Related Provisions"9 which
included (besides two sections devoted to the obligations under the Convention and political
commitments) some practical steps to facilitate compliance with Article XI. Among those

1 PC-III/B/WP.4, Annex.
2 PC-IV/B/WP.6, paragraph 4.
3 PC-IV/B/WP.6. Based on a recommendation made by the Expert Group (PC-IV/B/WP.6, paragraph 7), Working
Group B decided at the Fourth Session that the Expert Group on Chemical Weapons Destruction facilities should further
address this issue. See document PC-IV/B/12, paragraph 8.4. For the rest, see: Félix Calderón, The Preparatory
Commission for the Organization for the Prohibition of Chemical Weapons, op. cit.
4 Subparagraph 14.1 of PC-V/B/WP.16.
5 Subparagraph 14.2 of PC-V/B/WP.16.
6 PC-VI/B/WP.8, paragraphs 4-8.
7 It is interesting to note that in that meeting the Expert Group adopted the draft Model Bilateral Agreement
concerning the procurement of assistance and recommended that Working Group B consider forwarding to the
Commission for approval. The Commission approved it at Seventh Session (PC-VII/8, subparagraph 6.4).
8 PC-VII/B/WP.6, subparagraph 3.3. The Group also added in the same subparagraph: "Some delegations stressed
that it would be unacceptable to have two ways of preparing for implementation of the Convention before entry into
force. Others emphasised the view that overall effective implementation of the Convention will steadily enhance
confidence in ways which will substantially boost the kinds of co-operation foreseen under Article XI. The view was
expressed that it was not in the mandate of the Preparatory Commission to devise implementation procedures going
beyond treaty-mandated obligations and the mandate of the Paris Resolution..." Loc. cit.
See also R. Deyanov/A. Anastassov, Harmonising the Chemical Trade Restraints for Non-Proliferation Purposes: A
Case Study, forthcoming in Future Legal Restraints on Arms Proliferation, volume III of the United Nations series Legal
Aspects of Arms Control, ed. by J. Dahlitz.
9 This draft paper prepared by the Chairman of the Expert Group was subject to several amendments but finally was
not adopted by the Group.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 135

practical steps, there was, inter alia, the issue of the possible establishment of a database to
facilitate the exchange of information relating to economic and technological development in the
field of chemicals and other means that could be taken by the OPCW to foster international
cooperation for peaceful purposes in the field of chemical activities.1 Despite tireless efforts of
all delegations, the Chairman's paper did not meet consensus. It should not be surprising that
weeks later the unavoidable political connotation of the impasse was indicated in an Annex to
the Commission's Report of the Eighth Session, where the Commission recognised it as a
priority task of the Expert Group to "address and resolve matters pertaining to the
implementation of Article XI".2

From November 1994 until May 1995, the Expert Group's efforts found promising ground
for agreement in the establishment of the database. This matter has been developed throughout
the last three meetings of the Expert Group.3 Unfortunately the Group has not been in a
position to reach agreement on the other proposed practical steps, in particular the one
concerning inclusion of information on the outcome of the review of national regulations
controlling transfer of chemicals, equipment and related technologies. It is with the view to
contributing to overcome this transitory impasse that a proposal is made immediately below.

IV. Transparency Mechanism

It is not the intention of this paper to elaborate on all the arguments, some of them
contradictory, concerning the actual meaning of the provisions of Article XI, paragraphs 1 and
2. The interpretation of Article XI is a matter for States Parties of the Convention. It does not
seem in the interest of the Commission or the OPCW to make attempts to interpret what is
seemingly an issue with obvious political connotations. During the preparatory phase Article 18
of the Vienna Convention on the Law of Treaties undoubtedly prevails, whereby signatory
States are obliged to refrain from acts which would defeat the object and purpose of the
Convention. Beyond that, an inconclusive exercise to examine arguments for or against the
interpretation of Article XI during the preparatory work would serve no purpose. It is instead
constructive to look for a speedy resolution in pragmatic terms of the apparent incompatibility
between: (1) the underlying principle of legitimate transfer of chemicals confined to States
Parties in accordance with the Convention and (2) the so-called "general purpose criterion"4
which due to its emphasis on the purposes for which chemicals are intended could eventually be
used by a State Party as justification for restrictions on transfer to another State Party.

A possible solution to this puzzle could be the development by the Commission of a

transparency mechanism for transfers of scheduled chemicals, dual-use5 unscheduled chemicals
and, eventually, equipment and related technologies. If adopted, this transparency mechanism
would then be recommended to the Conference of States Parties for approval at its First
Session. As a matter of fact, this proposal is not quite original in that there have been attempts
made in this regard by the 1961 UN Single Convention on Narcotic Drugs and the 1971 UN
Convention on Psychotropic Substances, to prevent illicit transfer. It is also not original at all if
one takes into account the efforts made by UNEP and FAO with respect to the Prior Informed
Consent Procedure (PIC) under the London Guidelines for the Exchange of Information on

1 PC-VIII/B/WP.4, subparagraph 3.3.

2 Annex 2 to PC-VIII/18, page 31.
3 PC-IX/B/WP.4, paragraph 3; PC-X/B/WP.13, paragraph 2; and PC-XI/B/WP.3, paragraph 4.
4 The arguments for the "general purpose criterion" approach can be found in J. Perry Robinson, Some Consequences
of the General Purpose Criterion Having Been Used to Define the Scope of the Chemical Weapons Convention,
working paper presented at the Third Workshop of the Pugwash Study Group on the Implementation of the Chemical
and Biological Weapons Conventions, 19-21 May 1995, Noordwijk, the Netherlands.
5 Dual-use is usually understood to be for both civilian and military purposes.
136 Effective Implementation of the CWC

Chemicals in International Trade (as amended, 1989). However, it can be new from the point
of view of the Convention and the work being undertaken by the Expert Group on Technical
Cooperation and Assistance.

Two are the theorems on which the transparency mechanism is based. According to the first
theorem, discrimination in the field of transfer of chemicals will be applicable only against
States not Party. This must be so if States Parties are to achieve the universality goal of the
Convention which is to get all significant States, including those which to date have not yet
signed1 the Convention, to become States Parties allowing the Convention to be enforceable
world-wide. This selective discrimination is also necessary because it is the only way to prevent
in the territory of States Parties or places under its jurisdiction and control, actions in breach of
the Convention's obligations resulting from ambiguous or suspected dealings in chemicals with
States not Party, guided purely by commercial considerations.

The second theorem is that each State Party will have to implement Article XI in full
consistency with the object and purpose of the Convention which aims at completely banning
chemical weapons. No solution can be considered which is in some way detrimental to this
goal. Nevertheless, it needs to be recalled that toxic chemicals and their precursors do not fall
within the prohibition under Article I as long as they are used in accordance with Article II for
purposes not prohibited under the Convention, in types and quantities consistent with such
purposes. Those purposes are enumerated in the Convention in paragraph 9 of Article II:
industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes as well as
protective purposes, military purposes not connected with the use of chemical weapons and law
enforcement including domestic riot control purposes.

The transparency mechanism as it is envisaged, has two pillars. The first one concerns the
transfer relationship between States Parties. The second pillar relates to transfers from States
Parties towards States not Party. Grosso modo, the transparency mechanism would materialise
in annual declarations relating to transfers2 (purchase, donation, loan or any other form of
acquisition) or even the absence of it. Those declarations will be presented by States Parties (
either as a transferor or transferee or both) not later than 90 days after the end of the previous
year to the Director General of the OPCW who will submit it in turn to a subsidiary body of the
Executive Council for consideration.

Similar to the IAEA, the Executive Council will surely establish committees for different
purposes composed of all States Parties represented in the Executive Council. One of those
Committees would be in charge of budget and administrative matters. Another will, in all
likelihood, have under its purview technical cooperation and assistance matters and, by the
same token, can also consider the annual declarations made by States Parties on transfers under
the Convention. This Committee3 would not only serve as a sort of international monitoring
mechanism through reporting on transfer, but it could also recommend to the Executive Council
to randomly trigger an investigation or on-site visit taking into account relevant provisions of
Article IX not related to on-site challenge inspections.4

1 To date (6 September 1995), there are 159 signatory States to the Convention, 35 of which have ratified: Albania,
Algeria, Armenia, Australia, Austria, Bulgaria, Cook Islands, Croatia, Denmark, Fiji, Finland, France, Germany,
Greece, Lesotho, Maldives, Mauritius, Mexico, Monaco, Mongolia, Netherlands, Norway, Oman, Paraguay, Peru,
Poland, Romania, Seychelles, Spain, Sri Lanka, Sweden, Switzerland, Tajikistan, Turkmenistan and Uruguay.
2 It is important that transfer be understood to commence the moment the goods leave the customs territory of the
transferring State Party and can also include re-export.
3 The author of this paper advanced the idea of an Executive Council Committee to solve the problem of transfers to
several connoisseurs of the Convention in The Hague during the first quarter of 1995 with a view to promote further
thinking on it. However, the ideas expressed here are the author's own.
4 In the event the States Parties concerned are not Members of the Executive Council, it would appear necessary to
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 137

An embryo of this transparency mechanism can be found, as mentioned above, in the

Verification Annex, Part VI, Section B, paragraphs 5 and 6, on transfer of Schedule 1
chemicals outside the territory of one State Party to another State Party. In addition, the
declarations of aggregate national data under Part VII, Section A, paragraphs 1 and 2, and Part
VIII, Section A, paragraphs 1 and 2 can also be considered part of it. The purpose of the
proposed mechanism would be to facilitate transfers through a generally accepted regime and
would also encompass transfers to States not Party. This mechanism would contribute as well
to elucidate any misgiving or misunderstanding surrounding a particular transfer, would
prevent illicit transfer or make its timely detection possible, and would set up a database on
transfer for the benefit of OPCW Member States. It is assumed that the transparency
mechanism would have to be accepted by all States Parties. A consensus resolution adopted by
the Conference of the States Parties at its First Session based on a recommendation of the
Commission concerning the implementation of Article XI of the Convention would, in this
connection, be the most expeditious way to implement it.

As regards the first pillar applicable only to States Parties, the guiding principle would be that
any transfer of scheduled chemicals, dual-use unscheduled chemicals, and eventually
equipment and related technology, shall be unrestricted. Hence once the Convention enters into
force, national regulations would have to be adjusted accordingly as part of the national
implementing legislation. If a State decides to become State Party to the Convention, the basic
assumption is that it is the State's intention to comply fully with the provisions of the
Convention. To mistrust a State Party or to put into question its good faith1 risks to seriously
hamper the security component of the Convention since it would give rise to the opportunity for
a State Party, in the comfortable role of supplier, to have the right to judge whether the transfer
is appropriate or not. Under the mechanism however, in order to promote transparency,
confidence-building and trust, all transfers between States Parties would have to be previously
notified to the National Authorities of both the exporting and importing State Parties and the
natural or legal persons directly involved in the transfer will have to provide the necessary
information about them. The respective National Authorities would be in a position to consult in
a timely manner between themselves in order to clarify or amplify the information being
supplied by the persons involved in the transfer in accordance with relevant provisions of
Article IX not related to on-site challenge inspection. Furthermore, all transfers (including
imports) would be registered in the annual declaration which would be submitted to the OPCW
in a manner consistent with the Convention and responsive to the need for transparency as
agreed by States Parties without jeopardising confidentiality requirements.

The fact that there are some unscheduled chemicals -- either discrete organic chemicals as
defined by the Convention2 or inorganic chemicals which have been used as precursors to
produce chemicals weapons ( for instance, fluoride chemicals can be used for the production of
sarin-family nerve agents despite their civil applications )3 -- makes unclear the scope of the
annual declaration. It would be up to the Expert Group to decide how to select which
unscheduled precursors from among the discrete organic chemicals and inorganic chemicals

allow the Representatives of those States Parties to take part in the debate. It is also understood that if the States Parties
concerned are Members of the Executive Council, they would not participate in the corresponding decision.
1 The principle of Pacta sunt servanda contained in Article 26 of the Vienna Convention on the Law of Treaties
makes that assumption untenable.
2 See: Part I, paragraph 4, of the Annex on Verification.
3 That is the case of potassium fluoride, potassium bifluoride, ammonium bifluoride, sodium bifluoride or hydrogen
fluoride. See Robert Mathews, A Comparison of the Australia Group List of Chemical Weapons Precursors and the CWC
Schedules of Chemicals, Chemical Weapons Convention Bulletin, issue No 21 (September 1993): Quarterly Journal of
the Harvard Sussex Program on CBW Armament and Arms Limitation.
138 Effective Implementation of the CWC

would be subject to the international reporting mechanism. And the same could be said for the
relevant equipment and technologies.

With the exception of transfers of Schedule 1 chemicals, in accordance with paragraph 5 and
6, Section B, Part VI of the Verification Annex, the notification on transfer to the respective
National Authorities would contain, inter alia, the chemical name, types and quantities involved
in the transfer, the recipient in the importing State Party, the purpose and end-use of the
transfer, means of transport, States in transit (if any), measures for packing and labeling
(including those for handling it), name and address of the broker or any other intermediary (if
any), and the undertaking not to re-export the transfer unless it is previously agreed by the
transferring State Party.

Although some of these national measures go beyond even what the Convention requests any
State Party to do for the transfer of Schedule 1 chemicals, they are not in conflict and, rather,
complement the latter. Moreover, it is assumed that the National Authority will only report in
the annual declaration (with the exception of the transfers of Schedule 1 chemicals which follow
a different procedure) a justification of the types and quantities of the chemicals involved, the
end-use and the name and address of the end-user(s) as well as the broker or intermediary, if
applicable, and the States in transit, also if applicable. It is also assumed that a State Party
which has nothing to declare with respect to transfer of scheduled chemicals, dual-use
unscheduled chemicals, and eventually on transfer of equipment and related technologies,
including their transit in its territory or in any other place under its jurisdiction or control, will
present a nil declaration. And if transit1 was the only event which took place with respect to
transfer in the previous year, this would also have to be reported in the annual declaration.

As regards the second pillar concerning the transfer relationship between a State Party and a
State not Party, no transfer will be unrestricted. All transfers would be subject either to specific
prohibitions (as is the case for transfer of Schedule 1 and Schedule 2 chemicals -- the latter with
the three years exception), or stringent restrictions on national grounds for transfers of
Schedule 3 chemicals, dual-use unscheduled chemicals, equipment and related technologies. In
all cases, before the actual transfer takes place, the explicit consent of the National Authority of
the exporting State Party would be required.

The annual declaration to be presented by each State Party to the OPCW will also register all
relevant information concerning transfers to States not Party, including any incident in which
the State Party concerned was the State in transit for an illicit transfer and the measures that
were taken to intercept it.

The Australia Group policy should be viewed in this regard as one of the most effective
multilateral efforts to counter proliferation of chemical weapons. As part of the additional
necessary measures to achieve a complete ban of these horrendous weapons of mass
destruction and to promote the universality of the Convention, the Australia Group's guidelines
must not be ignored by signatory States to the Convention. Another example, this time with
legal implications, is the European Union's "Regime for the Control of Exports of Dual-Use
Goods" decided by the Council on 19 December 1994 and applicable as from 1 March 1995.2
This regime is aimed at ensuring the free movement of goods, including dual-use goods, within

1 There is also a need to read the Convention's obligations in light of the provisions of the Law of the Sea
Convention with respect to transit passage, innocent passage and freedom of the high seas.
2 Council Decision of 19 December 1994 on the joint action adopted by the Council on the basis of Article J.3 of the
Treaty on the European Union concerning the control of exports of dual-use goods (94/942/CFSP) and Council
Regulation (EC) No. 3381/94 of 19 December 1994 setting up a Community regime for the control of exports of dual-
use goods, published in the Official Journal of the European Communities, vol. 37, no. L 367 (31 December 1994).
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 139

the internal market in the European Community and to introduce effective control on dual-use
goods when they are exported from the Community. Annex 1 to that Decision includes in the
list of dual-use goods, the list currently applied by the Australia Group whilst no reference is
made to the Convention's Annex on Chemicals, in particular the scheduled chemicals.1 It is
assumed that this is so because the Convention is not yet in force.

States not Party suffering this discrimination would most probably invoke non-compliance
with international trade agreements against the State Party refusing the transfer, in particular,
GATT 1994,2 if both States are Members of the WTO. However, in such event that a dispute is
brought to the WTO under GATT 1994, the State Party refusing the transfer could, on its part,
invoke Article XXI3 or even Article XX4 of GATT 1994, with the advantage that no analogous
case has yet been addressed by a GATT Panel or the newly established WTO Dispute
Settlement Body. However, it is assumed that once the Convention enters into force, States
Parties which are also WTO Members will have the obligation to notify the WTO of the trade
restrictions which will be applied under the Convention against States not Party. The obligation
is based on Section I of the 1994 Decision on Notification Procedures adopted in Marrakesh5
and the 1982 Decision Concerning Article XXI.6 In any event, the principle of lex specialis
could make the Convention's provisions prevail over the GATT 1994 general norms, but if this
were invoked it would be controversial.

V. Conclusions

The Convention establishes intrinsically a discriminatory regime on transfer of chemicals.

Restrictions will not, in principle, be applicable in the transfer relationship between States

1 It is important to point out that the Australia Group's and the European Union's list of dual-use goods are not only
related to the prevention of the proliferation of chemical weapons but also deal with the prevention of the proliferation
of biological and toxin weapons, nuclear weapons and missile technology. Whatever the relevance these two important
policies have with respect to the Convention, their usefulness in countering proliferation in the nuclear, biological and
missile technology fields (in which there is no equivalent legal framework such as the Convention for the chemical
field) should not be lost sight of.
2 Article I (General Most-Favoured-Nation Treatment) of GATT 1994 provides as follows: "... with respect to all rules
and formalities in connection with importation and exportation, ... any advantage, favour, privilege or immunity
granted by any Member to any product originating in or destined for any other country shall be accorded immediately
and unconditionally to the like product originating in or destined for the territories of all other Members."
3 Article XXI (Security Exceptions) of GATT 1994 provides: "Nothing in this Agreement shall be construed ... to
prevent any Member from taking any action which it considers necessary for the protection of its essential security
interests ... relating to traffic in arms, ammunition and implements of war and to such traffic in other goods and
materials as is carried on directly or indirectly for the purpose of supplying a military establishment..."
4 Article XX (General Exceptions) of GATT 1994 provides: "Subject to the requirement that such measures are not
applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where
the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be
construed to prevent the adoption or enforcement by any Member of measures: ... necessary to protect human, animal
or plant life or health..."
5 GATT Secretariat, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts, p. 444.
6 GATT Analytical Index, p. 559. The 1982 Decision Concerning Article XXI stipulates:
"Considering that the exceptions envisaged in Article XXI of the General Agreement constitute an important element
for safeguarding the rights of contracting parties when they consider that reasons of security are involved;
Noting that recourse to Article XXI could constitute, in certain circumstances, an element of disruption and
uncertainty for international trade and affect benefits accruing to contracting parties under the General Agreement;
Recognising that in taking action in terms of the exceptions provided in Article XXI of the General Agreement,
contracting parties should take into consideration the interests of third parties which may be affected;
That until such time as the Contracting Parties may decide to make a formal interpretation of Article XXI it is
appropriate to set procedural guidelines for its application;
THE CONTRACTING PARTIES DECIDE THAT:
1. Subject to the exception in Article XXI;a, Contracting Parties should be informed to the fullest extent
possible of trade measures taken under Article XXI.
2. When action is taken under Article XXI, all Contracting Parties affected by such action retain their full rights
under the General Agreement.
3. The Council may be requested to give further consideration to this matter in due course."
140 Effective Implementation of the CWC

Parties, but to transfers to States not Party. However, since the Convention cannot be regarded
as an absolute guarantee to ban forever chemical weapons (it has been said that dual-use
equipment and related technologies are substitutable), there is a need to strengthen the
Convention's provisions on transfer in order to promote transparency, confidence-building and
trust. What is required then is just to expand the mechanism established in the Convention for
transfer of Schedule 1 chemicals in a manner compatible with the object and purpose of the
Convention in the implementation of Article XI.

The transparency mechanism proposed here implies a comprehensive and flexible approach to
deal with all chemicals relevant to the Convention. Equipment and related technologies should
be included to the extent that this renders the mechanism more reliable and predictable. All
States Parties will have to comply with it based not only on paragraph 2 of Article VII regarding
the cooperation and legal assistance between States Parties, but also on environmental grounds
inasmuch as paragraph 3 of the same Article is applicable to transfers of chemicals.

If this approach is not disregarded by the Expert Group on Technical Cooperation and
Assistance, one of the tasks ahead might be for the Expert Group to determine the scope of
what has to be included in the annual declarations as long as it is compatible with the
Convention. The Expert Group would discuss the kind of data needed to be supplied by States
Parties for any transfer between themselves or as the State in transit or the State in which the
broker's office is located for transfers between States Parties.1 The Expert Group can also
define the criteria concerning the reporting of dual-use unscheduled chemicals to what extent the
dual-use concept can be defined in clear-cut terms, whether it should be circumscribed only to
transfer of discrete organic chemicals as understood by the Convention or whether it should go
beyond that category to incorporate even inorganic chemicals and if so, how many inorganic
chemicals and on which basis (the question is whether it would be precursors only) and so on
and so forth. A similar exercise could take place with respect to equipment and related
technology regarding the data which should be part of the reporting mechanism.

The Expert Group could decide to discuss as well the amount of data required concerning
transfers from States Parties towards States not Party. Prima facie, the information requested to
be provided by the exporting State Party regarding the transfer of Schedule 2 (only for the first
three years after entry into force of the Convention) and Schedule 3 chemicals would go beyond
what is stipulated in Part VII, Section C, paragraph 32, and Part VIII, Section C, paragraph 26.
This is possible because the wording in those two paragraphs allows it; the requirements
stipulated therein are "interalia" and thus are not exhaustive. But the Expert Group can even
agree to ban the transfer of some Schedule 2 chemicals to States not Party during the initial
three years after entry into force of the Convention, as well as to ban the transfer of some
Schedule 3 chemicals, dual-use unscheduled chemicals, equipment and related technology.
Moreover, it seems clear that the transferring State Party must keep detailed registers or records
of any transaction undertaken by a natural or legal person from its territory or in any other place
under its jurisdiction or control.

The Expert Group would also have to consider the extent of the information required for
transfers of Schedule 3 chemicals and dual-use unscheduled chemicals, including inorganic
chemicals (particularly precursors), equipment and related technology. In addition, the Expert
Group may consider other aspects of the reporting mechanism related to transfer to States not
Party, such as information on any incident in which a State Party appears to be the State in

1 In the case of the State in transit or the State in which the broker's headquarters are located, there is also a need to
read the Convention's obligations in light of transhipment and free zones located in places under the jurisdiction and
control of States Parties.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 141

transit of an illicit transfer or the State in which is based a broker of an illicit transfer to a State
not Party, etc.

The Australia Group and the European Union would be, regarding transfer to States not
Party, in an excellent position to have their policies in the chemical field endorsed by Member
States of the Commission or even improve them so as to strengthen non-proliferation goals.
Although in the case of the European Union, whatever the approach finally endorsed by the
Conference of the States Parties at its First Session, there will be a need to update the Decision
taken by the Council on December 1994 in order to comply with the Convention's regime.

Last but not least, regardless of the approach the Expert Group might decide to follow, it
would first be advisable that this Group include in its Report a recommendation to Working
Group B that the approach be forwarded to the Commission for approval. In this way the level
of commitment of Member States of the Commission would be upgraded and would ensure the
smooth and successful implementation of Article XI once the Convention enters into force.
142 Effective Implementation of the CWC

Chemical Weapons Convention Implementation:

Industrial Concerns about export control - The National
Authority Perspective

David Halldearn

Introduction

The export control requirements of the CWC are complex:

• the requirements are different in respect of each of the Convention's Schedules of

chemicals;
• some of these requirements change over time;
• the Schedules do not contain simple lists of individual chemicals, but include families
of chemicals so that technical knowledge is necessary to determine whether
individual chemicals are covered;
• in the period after entry into force, the number of states parties will grow with a
resulting need to change the export control arrangements applying to non-states
parties;
• trade movements must be tracked in order to make declarations to the OPCW; and
• there is uncertainty about the extent of controls in the longer term.

The key requirements of the National Authority in constructing a trade control regime are that
it should be simple to understand, easy to administer, impose the minimum necessary burden
on business, and fulfil completely the requirements of the CWC. Trying to achieve these goals
in such a complex area is a difficult task and needs careful planning by the National Authority
and close consultation with industry.

CWC Requirements

In summary the trade control requirements of the CWC are:

At EIF
Schedule 1 chemicals to be transferred to State Parties only with no retransfer
Schedule 2 chemicals to be transferred to non-State Parties only with a certificate of end use
Schedule 3 chemicals to be transferred to non-State Parties only with a certificate of end use

At EIF + 3 years
Schedule 2 chemicals to be transferred to State Parties only

At EIF + 5 years
Control of Schedule 3 chemicals to be reviewed
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 143

Applying export controls

In the UK a system of trade controls is already in operation and which we believe can be
readily adapted to the requirements of the CWC. The existing controls stem from a number of
sources. In addition to national controls, there are a number of groups in which the UK
participates which co-ordinate trade licensing procedures, such as the Nuclear Suppliers Group,
the Missile Technology Control Regime, the Australia Group, and post COCOM (New
Forum).

The UK export licensing system works through the issue of licences to companies
authorising the export of sensitive goods and technologies. There are lists of specific sensitive
goods and technologies, but in the UK there is also a licensing requirement for the export of
any goods where it is known or there are grounds to suspect that they may be used in a
weapons of mass destruction programme.

A number of different types of licences are used to control exports:

Open General Export Licences (OGELS) provide permission for the export of certain goods
to certain destinations under the particular conditions of the OGEL. It is not necessary for
exporters to apply for an OGEL but they must register with the UK's Export Control
Organisation to use most of them. Exporters must keep records of goods exported;

Open Individual Export Licences (OIELS) may be issued, on application, to individual

exporters. They provide for multiple shipments of a range of goods to one or more
destinations. As with OGELS, conditions are attached to the use of OIELS and records or
shipments must be kept;

Individual Licences may be used for one or more shipments of the same goods to the same
consignee at the same destination;

Transhipment Licences may be issued where controlled products enter the UK solely for
transit to another country.

The decision of which type of licence is appropriate in a particular case depends on a number
of considerations such as the goods, their end use, and their destination.

This system of licensing is already used to control certain chemicals. However, whilst there
are similarities in the coverage of existing controls and those required by the Convention, there
are also significant differences.

Existing controls on chemicals stem mainly from the list of Australia Group chemicals, but
also include controls deriving from COCOM on chemical agents for military use. The controls
apply to specific, named chemicals. The controls required by the CWC, by contrast, include
many families of chemicals, some of which contain significant numbers on individual
chemicals. This is a substantial complication to existing export control arrangements. Expertise
is needed by the National Authority, export control organisations, and industry to determine the
exact coverage of the Schedules and of the resulting trade controls. National Authorities will
need to consider the provision of a help facility for exporters to enable those without expertise
to comply. Enforcement authorities, such as customs officials, will need to have a simple
system - such as a coding system - for identifying controlled chemicals. That is one reason why
144 Effective Implementation of the CWC

the UK supports the current initiative of the World Trade Organisation to extend the HS system
of coding to include CWC scheduled chemicals.
The trade controls required by the CWC depend on whether the country of destination is a
state party. In the early period after entry into force there are likely to be frequent ratifications
which will require consequential changes to export control regulations. This will place a strain
on National Authority resources and without careful management could easily be confusing for
exporters. In the UK such changes can usually be made administratively or through
regulations.

The UK system of export control relies on the exporter to understand the requirements and to
take the initiative in obtaining the appropriate licence. Consequently the National Authority must
ensure that there are effective methods for informing them of new requirements and of telling
new exporters about existing system of control. In the UK there are existing arrangements for
informing exporters of changes to export controls through advertisements in key journals, mail
shots, electronic information services, and trade organisations. There is also an effective system
of compliance monitoring which includes direct visits to companies. This provides a further
opportunity to explain export control requirements.

Import controls

Although this paper is about export controls, it would not be complete if the import control
requirements of the Convention were ignored. The CWC requires that state parties shall:

• not acquire Shedule 1 chemicals unless certain conditions are met (these are outlined in Part
VI of the Verification Annex to the Convention);
• maintain the overall level of Schedule 1 chemicals to 1 tonne or less;
• ban imports of Schedule 1 chemicals from non-state parties from entry into force; and
• ban imports of Schedule 2 chemicals from non-state parties from three years after entry into
force.

Under the UK system of import controls all imports are banned unless they are licensed. In
practice a general licence is issued for all goods other than those which are to be subject to
special control. To fulfil the CWC import control requirements it will be necessary in the UK to
extend the system of special control to Schedule 1 and 2 chemicals. Individual licenses will then
be needed to import these chemicals and the issue of licences will be determined by the UK
National Authority.
The introduction of trade controls to meet CWC requirements can be eased, in the case
of the UK, by using the existing arrangements and adapting them as appropriate. However,
there are problems which must be identified and carefully addressed.

Reporting requirements of the CWC

The reporting requirements of the CWC in respect of transfers of chemicals, in summary, are:

Schedule 1

transfers to and from other state parties and transfers to and from other facilities within
the state party over the previous year, including details of quantities, types, purpose,
and recipient;
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 145

Schedule 2

for each plant, aggregate data from the previous calendar year on quantities imported
and exported for each chemical above the declaration threshold, and for each country
involved;
for the initial declaration, the total amount of chemical imported or exported by the plant
site in each of the previous three calendar years;
aggregate national data for the previous calendar year on imports and exports for each
country involved.

Schedule 3

aggregate national data on imports and exports for each country involved.

It can be seen that there are two types of declaration information - facility data and aggregate
data. Facility data will form part of the initial and annual declarations. The requirements include
past transfers of chemicals, for which there has been no requirement to keep records for the
purposes of the CWC. Although this could potentially be a problem, in practice this sort of
information is important to most businesses and will be recorded and kept by chemical
companies.

The application of thresholds to aggregate data is still under discussion in The Hague. This
information is not collected currently in the UK, either for national trade statistics or other
regulatory purposes. If we cannot simply aggregate facility declarations it will be necessary for
National Authorities to collect information from companies on transfers below threshold levels
which will extend substantially the number of companies required to make declarations. One
industry estimate is that a further 8000 European companies will need to make declarations. The
problem is compounded by the difficulty of identifying smaller companies which may need to
declare.

In the view of the UK the difficulties in this area need to be balanced with the extent to which
this information could strengthen the verification regime of the Convention. For Schedule 3
facilities, where the major problems of data collection lie, declarations below the threshold
would provide almost no useful information to the OPCW. This is because only a gross figure
for imports and exports would be provided, it would be impossible to tie this in with facility
declarations which will be made in broad ranges, no facility specific transfer data is to be
declared, and the location of facilities declaring below the threshold could not be identified.

Conclusion

The difficulties of trying to implement the complex trade control and declaration provisions of
the Convention in a simple and understandable way is a difficult task. The task for the

National Authority is made easier if there is an established system of trade controls on which
it can build. Essential are good communications with industry. It is important that the
outstanding issues being discussed in The Hague are resolved so that National Authorities are
able to complete these aspects of implementing the Convention confidently and in a manner
which is sensitive to business needs.
146 Effective Implementation of the CWC

Fifth Session1:Industrial concerns about export controls

Background papers were presented by:

Dr Mathews (Australia, Department of Defence), ‘Australia’s import and export licensing

arrangements under the CWC’;
Dr Marauhn (Germany, Max-Planck-Institut für Öffentliches Recht und Völkerrecht), ‘The new
European Union Regime for the control of exports of dual-use goods’;
Mr Smith (USA), ‘Trade, the Australia Group and the Chemical Weapons Convention’;
Prof. Dr Gilsdorf (Judicial Service of the Commission of the EU), ‘EC competences with regard to the
CWC and its implementation - Some remarks’; and
SIPRI-Saskatchewan-Frankfurt Project: ‘Chemical Trade and Article XI: some comments’.

Summary
The discussions of this session dealt with: (a) export controls and Article XI; (b) the Australia
Group and Article XI; and (c) national export controls and harmonisation. All of these topics
were dealt with from different view points i.e., from the PTS, a National Authority and the
chemical industry.
Dr Müller reported on future export controls under arms control agreements in general. He
said: (1) That export controls are indispensable if properly indicated by suppliers—enhance the
confidence of member states, and compliance agreements; (2) Should export controls be
maintained and if yes, how? Export controls give a ‘club atmosphere’. Export controls
constitute a temporary technology monopoly—additional costs for companies and long delays.
They depend on authority licensing, how quick and competitive they are; and (3) Should export
control regimes be merged. The presentation underlined that the transparency and verification
for the Biological Weapons Convention (BWC) is hampered by the insistence of the non-
aligned countries to neutralise the allegedly detrimental effect of export controls on peaceful co-
operation among the BWC parties. The present situation cannot be maintained. It undermines
minimum consensus and as the Third World becomes more advanced economically, their
collaboration becomes inevitable.
Dr Calderón reported on aspects of export controls and the obligations of a State Party under
Article XI—the CWC grants unrestricted trade between States Parties, although it is a
discriminating regime. Trust is needed between States Parties. The CWC is not a perfect legal
instrument—consensus is needed. Confidence building is extremely important.
Mr Martodiwirjo reported on his chemical industry’s view on export control issues.
Indonesia’s system will be straightforward; report meetings will be conducted on exports,
imports, products and markets etc. Confidentiality—inspectors have the right to get all
information needed; but there is a risk that misuse of confidential business information could
occur with that data.
Mr Halldearn reported on export control issues—how difficult is it to collect data on exports.
The requirements are different for the schedules and may change over time. Export records
have to be kept (who is handling what etc.). The export control system in UK has to be
changed. The CWC also requires licence for import. Low concentrations, aggregate national
data and shipment below thresholds are of major concern for the industry and National
Authorities, and definitions on these topics are needed as soon as possible, so that NAs are able
to work on properly. Good communication between industry and NA is most important.

1Report by Patricia Radler, Research Assistant, CBW Project, SIPRI

 Conference Proceedings, Bad Homburg 8 - 10 September 1995 147

Discussion
Discussions dealt with the World Customs Organisation and the establishment of multi-digit
codes. When would changes to the Harmonised System of Tariffs (HS system) take effect, as
these changes could simplify tracking of CWC relevant trade data. Changes are underway but it
will take a few years to accomplish an adjusted HS system.
Discussions dealt further with Australia Group issues. The assertion that the Australia Group
is a ‘white man's club’ was briefly debated. One of the participants pointed out that this is both
untrue in fact and an incorrect characterisation of the Australia Group’s membership criteria,
which focus on states that have and enforce export controls, and noted that the Australia Group
is not a ‘second regime’, as, because it is voluntary, it is not legally a regime at all. There is a
new trend in international organisations, which is called ‘capacitation’, or the effort by
secretariats to give new capacities to member states. The new trend should assist states with
their information-gathering activities.
There were comments on the Information Cascade, and the National Authority’s role in
monitoring information flows; on the importance of transparency, and the possibility that
improved transparency would prevent states having to ask what the Australia Group is or does.
148 Effective Implementation of the CWC

B. Conference Papers of the SIPRI-Saskatchewan-

Frankfurt Group

The Role and Function of a National Inspector

in the National Authority under the CWC

RONALD G. SUTHERLAND, THOMAS KURZIDEM, THOMAS STOCK,

PATRICIA RADLER AND YORK VON LERSNER

I. Introduction
This paper is concerned primarily with demonstrating compliance with obligations acquired
under Article VI (Activities not prohibited under this Convention) and concentrating on the
tasks that inspectors of a National Authority would have to undertake under the relevant parts of
the Verification Annex (i.e., Part II, General rules of verification; Part VII, Regime for
Schedule 2 chemicals and facilities related to such chemicals; and Part VIII, Regime for
Schedule 3 chemicals and facilities related to such chemicals). Since no inspections under Part
IX (Regime for other chemical production facilities) are anticipated until the beginning of year 4
after entry into force of the CWC, that part is not addressed in this report. Part VI is also not
discussed since Schedule 1 chemicals are unlikely to be of concern for a civilian agency in the
first instance, (i.e., in that case inspectors (escorts) will likely be provided by a military
agency). Some consideration is given to the obligations of a State Party regarding Part IV (B)
of the Verification Annex (Old chemical weapons (CW) and abandoned chemical weapons).

II. The Verification Annex

General issues
Article VII of the CWC is concerned with the national implementation measures required of a
State Party in order that it may fulfil its obligations under the Convention. In particular, it has to
designate or establish a National Authority for this purpose. If a state does not possess CW, the
major tasks of a National Authority involve Article VI and its annexes. There are two aspects to
consider: (a) the declarations made under Article VI and (b) the routine, random inspections of
declared sites.
This paper is only concerned with the staff involved in escorting the International Inspectors
of the Organisation for the Prohibition of Chemical Weapons (OPCW) (the tasks for the per-
sonnel involved in providing declarations to the OPCW will not be discussed). This group
(referred to as escorts in the CWC) has, in fact, a much broader role to play in demonstrating
compliance with the CWC and its annexes. Any information required by the International
Inspectorate during an inspection could only be acquired by and through the representatives of
the National Authority present, that is, the national inspectors (escorts). It follows that these
individuals will need to have considerable understanding of the CWC, the national obligations
and the specific industrial plant sites under inspection. This implies a knowledge of the
industrial processes involved, the regulatory nature of the CWC and national implementation
legislation, and an ability to convey to the industrial operators both their rights and obligations
during an industrial inspection.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 149

The competence of the national inspectors will need to be similar to that of the OPCW
inspectors. They will be required to have detailed knowledge of all facilities that produce,
process and consume Schedule 2 and 3 chemicals above the specified threshold, since these
plant sites will be liable to on-site inspections. (There are three parts of the Verification Annex
of which the national inspectors will be required to have detailed knowledge of—Parts II, VII
and VIII. )
In general, an inspection starts with notification of the intended arrival of the OPCW team at a
point of entry (POE) so that it can reach the inspection site within a further 12 hours. This is
where the duties of the national inspectors start. The OPCW team will bring with it ‘such
equipment which the Technical Secretariat has determined to be necessary to fulfil the
inspection requirements’. The national inspectors have the right to inspect this equipment and
ensure that it meets the description of the equipment approved for that particular type of
inspection.
Upon arrival at the actual inspection site there is a requirement that the OPCW team has to be
briefed by a ‘facility representative’, who would require prior training by the National
Authority.
The activities of the international inspection team are governed by the inspection mandate
provided by their Director General, a Facility Agreement, where applicable, and the respective
provisions of the Convention. The escorts must ensure that the inspection is carried out with the
least possible inconvenience to the facility and that the facility operators are aware of their rights
under the Convention. In particular, the OPCW team cannot operate any part of a facility but
should request that certain operations be performed, if needed, to fulfil their mandate. All
inspection activities will be carried out with national inspectors present. Samples required by
the OPCW team will normally be collected by the staff of the facility under supervision, with
the escort team retaining a portion for the State Party. Any extension of the duration of an
inspection will require the approval of the National Authority. At the end of the inspection the
OPCW team will present its preliminary findings to the national inspectors representing the
State Party. The general provisions for inspections apply unless an alternative procedure is
provided under other parts of the Verification Annex. Parts VII and VIII provide such
procedures for Schedule 2 and 3 chemicals.
Schedule 2 requirements
The initial declarations of a State Party will provide information on all Schedule 2 chemicals
produced above the threshold1 and data on the number of plant sites and plants that should
undergo an initial inspection within the first three years after entry into force of the CWC.
Verification of Schedule 2 declarations will involve on-site inspection of all plant sites and its
plant(s) that have produced, processed or consumed any such chemicals during the three
calendar years before entry into force (EIF) or which anticipate any of these activities in the
following calendar year. The Technical Secretariat will give priority to Schedule 2 facilities over
the first three years after entry into force of the Convention. The aims of these on-site
inspections are to verify that Schedule 2 activities are in accordance with a States Party’s
obligations under the CWC which, inter alia, include the absence of Schedule 1 chemicals,
consistency with declarations and non-diversion. Each plant site will receive an initial
inspection at which time a Facility Agreement for the plant site will be negotiated by the OPCW
and the National Authority. This should be agreed upon not later than 90 days after the
inspection. In general, access by the OPCW inspection team to other parts of the plant site will
be granted in accordance with the negotiated Facility Agreement. The National Authority will

1 The thresholds for Schedule 2 declarations are: Schedule 2A* = 1 kilogram, Schedule 2A = 100 kilograms and
Schedule 2B = 1 tonne.
150 Effective Implementation of the CWC

have a minimum of 48 hours notice of any given inspection and the inspection cannot last more
than 96 hours.
Schedule 3 requirements
Initial and annual declarations are required for all plant sites where more than 30 tonnes of a
Schedule 3 chemical were produced in the past calendar year or are anticipated to be produced
in the following calendar year. Verification will involve on-site inspection at plants where
production is in excess of 200 tonnes aggregate above the declaration threshold. The inspection
aim is to verify that the activities are consistent with the information provided and that no
Schedule 1 chemical is present. There will be no Facility Agreement unless requested by the
State Party. The OPCW team will focus on the declared Schedule 3 plant(s) but may request
access to other parts of the plant site on the basis of negotiation with the national inspector
present. Access to records, sampling and on-site analysis will also be subject of negotiation.
The State Party will receive a minimum notice of five days before the inspection takes place and
the inspection cannot last more than 24 hours without further agreement of the national
inspector. Inspections of Schedule 3 facilities will have a lower priority than inspections of
Schedule 2 facilities, especially during the first three years. The maximum number of
inspections (including ‘other chemical production facilities’) is 3 + 5 per cent of the total plant
sites declared to an overall limit of 20 inspections. No individual plant will receive more than
two inspections per annum.
Old and abandoned Chemical Weapons
Within 30 days after entry into force of the CWC, every State Party with old or abandoned CW
on its territory has to provide data on these weapons to the Technical Secretariat. If a State Party
has abandoned CW on the territory of another party, it also has to submit relevant information.
This information shall include, to the extent possible, information on the location, type,
quantity and the current condition of the CW and will be verified by the Technical Secretariat
through initial inspection later. The purpose of this inspection is to: (a) verify the information
submitted, (b) determine whether the CW meet the definition of old CW, (c) verify the origin of
the abandoned CW, and (d) establish evidence concerning the abandonment and identity of the
abandoning state. After the initial inspection the ‘usability’ of the old or abandoned CW has to
be determined.

III. The tasks of the National Authority

Inspector (escort)
The National Authority personnel will escort the inspection teams from the OPCW. The
following discussion is initially limited to Schedule 2 and 3 inspections of a routine nature at
declared facilities and an assessment of the tasks involved together with the skills required. The
in-country escort of an OPCW team, the ‘national inspector’ will need to have detailed
knowledge of all Schedule 2 and 3 facilities that: (a) provide declarations to the National
Authority, and (b) are liable for on-site inspections because they produce chemicals above the
specified threshold levels.
Before any inspection takes place the national inspectors will have to be familiar with all of
the State Party’s declared plant sites and plants. They will have to be familiar with the OPCW’s
inspection processes, as well as having the requisite technical competence (or access to it in
other government departments). They will have to be able to carry out negotiations with both
the inspection team and the facility operators. They will act as the States Party’s interface with
the OPCW inspection team and will also have a major responsibility to industry involved in the
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 151

production, processing and consumption of scheduled chemicals. Later their activities will
extend to the producers of other ‘discrete organic chemicals’.
During the first three years inspection assignments will involve the following:

Schedule 2 (i) Initial Inspections,

(ii) Facility Agreements, and
(iii) Annual Inspections,
Schedule 3 (i) First Inspections,
(ii) Facility Agreements (if requested), and
(iii) Annual Inspections.

The activities of national inspectors during an inspection process can best be seen by
reviewing the activities of the OPCW inspection team and noting that the inspected State Party
has the right to observe all verification activities. The national inspectors will have 48 hours
notice of a Schedule 2 inspection (this includes the 12 hours after arrival at the POE of the
inspection team). In that period the National Authority will have to review all documentation
provided to the OPCW on that facility to review the accuracy of the appropriate declarations and
any other information on the facility held by the National Authority. The other pre-inspection
activities will involve: (a) reviewing the notification sent by the Director General to the State
Party concerning the nature of the inspection and the size of the inspection team, (b) notifying
the facility that it will be inspected in the next 48 hours, and (c) preparing the pre-inspection
briefing with the facility personnel who will be responsible for delivering it.
After the pre-inspection briefing, the OPCW team begins its inspection using the rules of
inspection which form part of the Verification Annex to the CWC. These are based on delicate
negotiations and must be adhered to. The Technical Secretariat will actually work from an
Inspection Manual that is being developed by the PTS and will be approved by the Preparatory
Commission (PrepCom). The role of the national inspector(s) in this process is to ensure that:

(a) the OPCW team limits its activities to those required to verify compliance;
(b) the inspection team carries out the on-site inspection in the declared location and only
visits other locations at the plant site either after on-site negotiations or under managed access
rules, unless a Facility Agreement already exists;
(c) the industrial operator is fully aware of its rights and obligations under both the CWC and
national implementing legislation; and
(d) no confidential business information (CBI) unnecessarily leaves the site and that which
does only leaves in a secure manner with an appropriate ‘paper trail’.

It is assumed that the inspection process will eventually fit into the time frames suggested by
the CWC, but initial inspections and the negotiation of Facility Agreements will almost certainly
require more time on the part of both the facility management and the national inspector(s). In
fact, early National Trial Inspections have shown this to be the case. The national inspector(s)
will have to negotiate extensions of on-site inspections if there are problems with verification of
compliance by the OPCW team in the time frames allocated. This extension is not a right and
needs to be clearly demonstrated by the OPCW team.
There are two final aspects of the inspection: the debriefing where the OPCW team supplies
its preliminary report, and a listing of all samples and written information that it wishes to take
off-site. There may be disagreement over the latter issue, but the debriefing meeting will have to
be completed within 24 hours of the termination of the inspection when the preliminary report
of the OPCW team is initialed by the National Authority.
The final report of the OPCW team should be in the hands of the National Authority within
152 Effective Implementation of the CWC

10 days, and it has 30 days to add annexed comments to the report and sent it to the Director
General of the OPCW.
The above illustrates the general outline of an inspection process. The difference between
Schedule 2 and 3 does not relate to inspection methodology; the differences relate to inspection
aims, possible lack of a Facility Agreement, the length of the inspection period and time of
notification.
In the case of Schedule 2 facilities and, by request of a State Party, for Schedule 3 facilities a
Facility Agreement will have to be negotiated for each declared plant site and this will require
both legally and technically qualified personnel from the National Authority side. It is likely that
negotiating a Facility Agreement will require three phases to complete: (a) initial discussions
between the management of the plant site (or their representatives) and the National Authority
represented by national inspectors; (b) preliminary negotiations between the National Authority
and the OPCW team; and (c) final agreement on the Facility Agreement between the National
Authority and the OPCW after further discussions between the national inspector(s) and the
plant site management.
In the absence of a Facility Agreement, as under Schedule 3, such inspections will be carried
out on a ‘managed access’ basis. This requires a step-by-step negotiation on the extent of
access between the OPCW team and the national inspector(s) acting for the State Party as well
as the facility operator. In the industrial context, this means ensuring the security of CBI as
described in the Confidentiality Annex.
The inspection activities of national inspectors can be summarised as follows: (a) notification,
(b) pre-inspection process, (c) meet OPCW team at the POE, (d) briefing of OPCW team, (e)
overseeing all inspection activities, (f) transmitting requests from the OPCW team to facility
representatives, (g) debriefing and discussion of preliminary findings with the OPCW team, (h)
escort OPCW team to POE, (i) review and comments on the final report, and (j) annexed
comments to the OPCW.
Inspectors (skills)
It is necessary to determine the skills required in a team of national inspectors. There will be a
need for: (a) technical skills, (b) understanding of regulatory processes in the chemical industry
as well as the CWC, (c) the ability to explain rights and responsibilities to facility employees
relative to the CWC and national legislation, (d) the ability to negotiate with the OPCW team,
especially for initial inspections, managed access and Facility Agreements, and (e) the
knowledge of the country’s implementation legislation.
Inspectors skill might involve:1

(a) Leadership, planning, administration;

(b) Engineering, chemistry, equipment and operation, understanding of statistics, health and
safety (environment), confidentiality, industrial auditing, report writing;
(c) Interpretation and translation, interviewing, data recording; and
(d) Law, regulations and negotiations.

Any training of national inspectors should center on: (a) verification principles and the CWC,
(b) technical skills required to oversee inspections, (c) administration, and (d) a knowledge of
regulatory processes in the chemical industry. The background training for a national inspector
would be a degree in chemistry (usually industrial, analytical or organic), engineering
(chemical, process or mechanical), industrial accountancy, law or business administration and
previous experience either in industry or in a regulatory environment.

1 PrepCom report PC III/B/WP.3, May 1993, a report on ‘Inspection team composition’.

 Conference Proceedings, Bad Homburg 8 - 10 September 1995 153

IV. Estimate of inspector (escort) requirements

It is unlikely that a National Authority would be able to ensure that it could ‘observe all
verification activities carried out by the inspection team’ with only one inspector present
especially since the National Authority is responsible for all administrative arrangements for the
inspection team at very short notice (e.g., communications, interpretation, transportation and
the like). In addition to the fact that it is unlikely to find the mix of skills required to escort an
OPCW inspection team in one individual, it is necessary to ascertain the minimum number of
national inspectors required to ‘escort’ an inspection team. To answer this appropriately
requires an indication of the size, composition and tasks of the OPCW team.
Team size
In terms of an escort group which has to ‘observe’ all the verification activities described, the
OPCW1 team can be considered to fall into three groups based on required skills:

Group A Team management 2

Group B Operational group 7
Group C Support group 3

The operational group activities can also be subdivided into engineering, chemistry and
industrial accounting. Based upon this assumption it can be suggested that a need for 3 to 5
national inspectors would be required to escort an OPCW inspection team:

Group A 1 inspector to carry out negotiations with the team leader and
make specific requests to the facility operator;
Group B 3 inspectors to cover engineering, chemistry and accounting
exercises; and
Group C 1 inspector to cover the administrative requirements of the
inspection including interviews, translation, etc.

In principle, this number could be reduced by having one inspector cover more than one
function, but no individual can be in more than one place at a time. For the purposes of this
paper, it is assumed that there will be a need for a minimum of four national inspectors at an
initial inspection whether it is a Schedule 2 or 3 facility. This is, of course, the minimum
staffing required.

Workload
The number of national inspectors required by a State Party is a function of the overall
workload and the number of routine inspections generated by: (a) Schedule 2 facilities, (b)
Schedule 3 facilities and, later, (c) discrete organic chemical producers. It is important to
estimate the number of days an inspector actually can spend in the field escorting OPCW
inspection teams. Until there is a specific legal requirement for producers, processors and
consumers to declare their activities related to scheduled chemicals, the best estimates only
include producers and consumers involved in national producer organisations.
If the number of plant sites under Schedule 2 is ‘X’ and the number under Schedule 3 is ‘Y’
and if the assumption is that the OPCW will attempt to cover both the schedules plants in the
first three years after entry into force then the number of inspection days are:
Schedule 2: (X) x 96 h = (X) x 4 days

1 PrepCom report PC III/B/WP.3, May 1993, a report on ‘Inspection team composition’.

154 Effective Implementation of the CWC

Schedule 3: (Y) x 24 h = (Y) days

As far as Schedule 2 is concerned, there is a requirement for all sites to undergo initial
inspection and to prepare for a Facility Agreement to be signed by the OPCW and the State
Party within the next 90 days, and to decide on the frequency and intensity of subsequent
inspections. Additionally, the inspections must be unpredictable or random, and no individual
plant can be inspected more than twice per annum.
For Schedule 3, the first inspection of any site will be the initial inspection, but the Technical
Secretariat’s selection procedure will be purely random except as related to geographic
distribution. A risk assessment will also be implied in the inspection Schedule, and a Facility
Agreement may be requested by the State Party. Again, a plant site will not be inspected more
than twice a year.
For the number of inspections related to Schedule 3 and ‘other chemical production facilities’
the CWC provides the general formula:

3 + 5 per cent of the plant sites declared (under Schedule 3 and ‘other’ facilities) per
calendar year to a maximum of 20 inspections.
If this number is estimated and equal ‘Z’, the number of inspection days for Schedule 3 would
be based upon the following estimate:

(Z) x 24 h = (Z) days

It is obvious that the application of the formula for the number of inspections will reduce the
inspections on Schedule 3 facilities.

V. Other inspection activities

The average industrial work load is approximately 220–240 days per annum, but there will be a
requirement to have inspectors available for 365 days per annum (i.e., there is a factor of ca.
1.6 to 1.8 to bring a national inspector complement up to the number required to cover all
possible industrial inspections). There are also, in many countries, health and safety regulations
which involve: (a) a number of continuous working hours for an individual, and (b) work
situations where no individual may work alone.
It is also necessary to assess how many days an inspector would actually be available for
escort duties. Past international practice suggest that an inspector would be ‘on-site’ for 40–50
days with a target of 100 days in the field.
This leads to the assessments of other tasks that would require inspector skills. Amongst
these are: (a) analysis of other States Parties declarations on scheduled chemicals and plant
sites, (b) challenge inspections, (c) industrial training and liaison, (d) assisting the State Party’s
delegation to the OPCW, (e) assisting other State Party’s National Authorities, and (f) liaison
with military agencies re-inspections (single small-scale facilities).
If a country has old or abandoned CW the workload for the national inspectors will increase,
because the Inspectorate will perform certain inspection related to these weapons, too.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 155

The Tasks of the National Authority under

the Chemical Weapons Convention

RONALD G. SUTHERLAND, THOMAS STOCK, THOMAS KURZIDEM,

PATRICIA RADLER AND YORK VON LERSNER

I. Introduction
This paper is concerned with national responsibilities under the Chemical Weapons Convention
(CWC). Each State Party to the Chemical Weapons Convention has agreed to a set of
fundamental obligations under that Convention. A State Party accepts the basic provisions of
the Convention in Article I and will implement the obligations by taking the necessary national
legal and administrative measures required by Article VII. It will provide the declarations and
information required under Articles III, IV, V and VI and this information will be subject to the
verification provisions of these articles using the machinery of Article VIII. The State Party also
agrees to accept challenge inspection under Article IX if the need arises.
In order to do this, each State Party has to:

— appoint a National Authority;

— produce the required Declarations;
— communicate and co-operate with the Organisation for the Prohibition of Chemical
Weapons (OPCW);
— assist international inspection of its facilities;
— co-operate with other States Parties;
— treat all communications with the OPCW and other States Parties as confidential; and
— enact penal legislation to prevent any activity prohibited to a State Party.

National implementation regimes will differ from State Party to State Party according to the
impact of the CWC on its activities and its chemical industry. Each State Party will have to
decide on the nature, size and structure of its National Authority. The nature of its National
Authority will be a function of:

— possession or nonpossession of chemical weapons;

— possession or nonpossession of chemical weapons production facilities (CWPF);
— any past chemical weapons (CW) history: former possessor, engaged in former CW
development programmes and testing, having old or abandoned CW stocks;
— the existence of a Schedule 1 facility;
— the potential for a State Party’s chemical industry to produce chemical weapons; and
— the nature of a State Party’s chemical industry.

As the States Parties prepare for implementation, each State Party must analyse its own
specific situation. If one examines the responsibilities of a National Authority in detail, it will
have some or all of the following tasks in its interactions with the OPCW:

— analysing its chemical industry, both private and state, and in particular its activities in
relation to the schedules;
— initial declarations under Articles III, IV, V and VI;
— annual declarations under Articles IV, V and VI;
— escorting OPCW inspections under Articles IV, V, VI, IX and X;
156 Effective Implementation of the CWC

— accrediting OPCW Inspectors;

— developing Facility Agreements;
— overseeing closure and destruction activities relating to CW and CWPF;
— co-ordinating the provision of national assistance under Article X;
— analysing the level of chemical export and import activities;
— reviewing national regulations in international trade in chemicals; and
— old and abandoned chemical weapons.

In addition to these tasks, the National Authority will have to be involved in international
activities relating to representation to the Conference of States Parties, the Executive Council
and other activities as required. In general terms a State Party’s responsibilities which will
likely be delegated to its National Authority will have two basic elements: (a) an internal one
that involves providing information of regulatory nature to an international body, and (b) an
international one where it provides technical support to its delegation to the OPCW.

II. Models of National Authorities

Two approaches are common in setting up a National Authority. If a State Party decides after
reviewing its chemical industry and any past CW history that the impact of the implementation
requirements is very limited, a structure for the National Authority may be chosen which is
based upon the designation of a branch or even only one official in an already existing
department. This could be the Department of Foreign Affairs, the Department of Chemical
Industry or the Department of the Environment.
If, on the other hand, a State Party believes that implementation will have a major impact and
place a heavy burden on its chemical industry and that many activities will be related to Articles
II, IV and V, the designation of an existing organisation or the establishment of a new organ
acting as the National Authority could be necessary.
Thus, two models for the National Authority have won general acceptance: (1) the
designation of an existing agency, and (2) the establishment of a new agency. In the light of the
responsibilities of a National Authority two options are pertinent: (a) a centralised National
Authority with responsibility for all CWC-related issues, and (b) a decentralised approach, a
National Authority which serves only as a liaison point1 and delegates the real functional
aspects to existing agencies or ministerial bodies.
A review of the available information on the establishment of National Authorities in various
countries demonstrates the approaches which have been followed. Australia has chosen the
most specific set-up by establishing a Chemical Weapons Convention Office.2 The Swedish
approach is different; the National Authority will be the Ministry of Foreign Affairs, but it will
only serve as a co-ordinator. The various compliance tasks will be performed by existing
governmental agencies.3 In general, the same approach has been chosen by Germany,4 where
the National Authority, as a point of liaison, is also the Ministry of Foreign Affairs. The
‘military’ component (aspects of Schedule 1 activities and old and abandoned CW) will be the

1 Tanzman, E., Zeuli, A. R. and Kellman, B., 'Legal aspects of National Implementation of the Chemical Weapons
Convention', paper presented to the Regional Seminar on the National Implementation of the Chemical Weapons
Convention, Jakarta, Indonesia, 28-30 Nov. 1994.
2 Australia’s Chemical Weapons Prohibition Act Part 7; the CWC-Office is a non-statutory unit co-located with the
Australian Safeguards Office.
3 By dividing the military and civilian (under Article VI, CWC) activities to the War Material Inspectorate
respectively to the Chemicals Inspectorate.
4 Sutherland, R., Kurzidem, T. and Stock, T., 'The Role and Function of a National Inspector in the National
Authority under the CWC', paper presented to the Regional Seminar on National Implementation of the Chemical
Weapons Convention, Pretoria, South Africa, 12-14 September 1994.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 157

responsibility of the Minister of Defence and the ‘civilian’ component (all activities related to
Article VI) will fall under the responsibility of the Minister of Economics. Finland appointed its
Ministry of Foreign Affairs as the National Authority (which will act as the point of liaison with
the OPCW and other States Parties) but the day-to-day work will be the responsibility of the
Finnish Institute for Verification of the Chemicals Weapons Convention at the University of
Helsinki.

III. Demonstration of Compliance with Article VI of the CWC

It is the task of each State Party to demonstrate its compliance through the provision of
information to the OPCW via its National Authority. The major initial burden then falls on the
National Authority to collect the data and transmit it to the OPCW without sacrificing either state
security or confidential business information (CBI) in the process. The internationalverification
process will fail if the national process of data collection and transmission is not previously in
place.
The CWC deals with the destruction of existing weapons (disarmament) and the control of
potential production of CW (arms control or non-proliferation). This extends the reach of the
CWC into civilian owned chemical facilities, world-wide and requires State Parties to collect
data from industry in order to develop their declarations to the OPCW. This means that the
National Authority has to be able to deliver declarations 30 days after entry into force not only
of government activities so far as chemical weapons are concerned, but also for all industrial
facilities covered by Article VI. Thus, each State Party to the CWC will have to do the
following:

— identify all companies affected by the CWC including producers, processors, consumers,
importers and exporters;
— ensure that its chemical and related industries are aware of their obligations both to the
National Authority and the OPCW;
— develop procedures to assist industries that may be subjected to routine inspection by the
OPCW; and
— meet with trade associations and companies affected by the OPCW.

It should be noted that the constraints of Article VI fall on the industrial sector that produces
or uses chemicals that appear on the schedules of the CWC. These are measures designed to
show that chemicals of concern to the CWC are not misused or diverted into purposes banned
by the CWC. The chemicals in schedules 2 and 3 have many legitimate uses in the manufacture
of pesticides, pharmaceuticals, ink and the like and this is why the CWC opts for the routine
monitoring of ‘dual use’ industrial chemicals, their production and processing facilities.
Verification will be difficult since (1) many of the scheduled chemicals have legitimate
commercial uses, and (2) many of the known chemical weapons could be made in commercial
chemical facilities.

IV. Industry and Declarations under Article VI of the CWC

After the appropriate implementing legislation, declarations (initial and annual data reporting)
will be mandatory for companies that produce, import or export chemicals listed in schedules 1,
2 and 3 in quantities above the thresholds specified in the CWC as well as producers of discrete
organic chemicals. This also applies to companies that process or consume quantities of
schedule 2 chemicals above the thresholds stated. Besides the producers of industrial
chemicals, the following could be involved: pharmaceuticals, mining, paper, textiles, plastics,
158 Effective Implementation of the CWC

printing inks, semi-conductors, electronics, etc. Also, companies that produce unscheduled
discrete organic chemicals in quantities more than 200 metric tonnes must declare these facilities
or, if their products contain phosphorus, sulphur or fluorine (PSF), over 30 metric tonnes.
Facilities that produce pure hydrocarbons or explosives are excluded. Other exclusions are
currently being debated, e.g. polymers, beverages from fermentation etc. This information can
only be obtained from industry in the first instance. The CWC provides specific definitions for
industrial activities in Article II; of particular importance for industry are those for production,
processing, consumption, facility, unit, plant, plant-site and facility agreement.
As soon as practical, the National Authority (or CW co-ordination office for implementation
if the former does not yet exist) has to:

— ascertain national trade in schedules 2, 3, and ‘other discrete organic chemicals’;

— ascertain imports and exports in Schedule 2 and Schedule 3 chemicals;
— ascertain the number of plant sites and plants that will be liable to inspection by the OPCW.

It is unlikely that a completely accurate number can be obtained before implementing

legislation is available, but national organisations involved in production, consumption, and
processing of chemicals as well as organisations of importers and exporters of chemicals
should be contacted to obtain a framework from which to estimate the potential workload of the
National Authority.
The PrepCom is preparing a Declaration Handbook for all required declarations of a State
Party. Each National Authority will have to work with industry on the best format for data
transfer of information on specific scheduled chemicals. This should ideally be done before
entry into force of the CWC since (1) the type of information and level of detail may not have
been required previously, (2) there will likely be a substantial error load while the system is
being worked out, and (3) the agency collecting the data will probably have little prior
experience with both the CWC related data and the software involved. This will be an area
where trial data collection and transfer should be carried out especially to develop ways in
which CBI should be protected.
In summary the National Authority will be responsible for three different types of data
reporting: (a) data concerning the first declaration after entry into force of the Convention for
the State Party, (b) annual data reporting, and (c) reporting of changes on annually submitted
data. The data should be retrievable, authorised and assessable on the National Authority level.

V. Industry and Inspections under Article VI of the CWC

Once a State Party provides its declarations to the OPCW, these will be verified by on-site
inspections (routine and challenge inspections) by the Technical Secretariat. The CWC provides
for various levels of access but industry has rights as to the extent of the inspection process. A
major task of the National Authority will be to assist the facility operators in this regard.
Facilities that produce Schedule 1 chemicals can be inspected at anytime, and there is no limit
on the actual number of inspections per annum. Individual Schedule 2 or 3 plants can receive a
maximum of two inspections per year. Plants that produce ‘other discrete organic chemicals’
will not be inspected during the first three years, but the total annual number of inspections for
Schedule 3 and these other facilities is 20 or 3 plus 5% of the total number of the plant sites
declared whichever is smaller. There is also a time limit as to how long inspectors from the
OPCW can spend at an individual site unless the National Authority agrees to an extension. The
time limit is 96 hours for Schedule 2, 24 hours for Schedule 3 facilities and other chemical
production facilities. Due notice must be given for a routine inspection.
Arrangements must be made for practical matters such as the arrival of an inspection team at
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 159

the point of entry of the inspected State Party (e.g., travel arrangements and the provision of
escort service). This will be the responsibility of the National Authority.
Schedule 2
During the first three years after entry into force, all commercial facilities that produce, process
or consume Schedule 2 chemicals above the thresholds should undergo an initial inspection
during which negotiations will commence on a Facility Agreement. This will be negotiated
between representatives of the OPCW and the National Authority with assistance from the plant
management. The document should be agreed within 90 days or further inspections will involve
‘managed access’. The Facility Agreement is for the plant site which contains the plant. The
document specifies which parts of the site apart from the plant are of concern to the Inspectorate
and thus, may form part of the routine inspection pathway. It limits the activities of the OPCW
inspectors at the plant and plant site as well as the obligations of the management to provide
information and samples to the OPCW team through the National Authority.
Schedule 3
Schedule 3 facilities are also subject to routine inspections after entry into force, but there is an
initial priority for Schedule 2. There is no requirement for a formal initial inspection nor for a
Facility Agreement, although one can be requested by the facility management through the State
Party.
Other chemical production facilities
The inspection regime for ‘other chemical production facilities’ will not begin until four years
after entry into force and then only after a decision by the Conference of States Parties.
Challenge inspections
There is also a provision for short notice inspections at any site, declared or undeclared, and at
government or privately owned facilities. These are challenge inspections under Article IX.
There has to be documented suspicion that activities prohibited by the CWC are being
undertaken at the site, and such suspicion has to be documented by the challenging State. The
National Authority has the major responsibility to ensure that the inspection results are
unambiguous and that the challenged State is in compliance with its CWC obligations. There
are complex procedures to balance necessary intrusiveness with legitimate concerns over either
national security or trade secrets (CBI). These inspections should be rare at commercial
locations.
In terms of the access requirements during inspection, there are specific rights for the facility
operator, and it is the task of the National Authority to ensure that these rights are respected.
There is a right to protect confidential equipment, data and information not related to declared
activities. If it is a challenge inspection, the facility operator also has the right to shroud
equipment etc. which is not related to CW or not an activity that caused the inspection. There is
the concept of ‘managed access’ by which access is limited by negotiation either before or
during an inspection. If the OPCW inspectors believe that they need further access to other
parts of a facility to clarify ambiguities or any disagreement between the Inspectorate and the
facility, this would have to be resolved by the representatives of the National Authority. The
Inspectorate, too, has specific rights of access to equipment and personnel in order that it may
verify the substance of the declaration made at a specific location, but the inspection team must
not compromise safety at the plant site either by their actions or requests.
National Authority tasks
Any company that provides declarations to its National Authority must prepare for inspections.
This should be done with the National Authority. There will be a need to protect confidential
160 Effective Implementation of the CWC

business information, to provide background for the negotiation of a Facility Agreement and to
develop a pre-inspection assessment. The National Authority must assist in such preparations
which could include training of plant personnel and plant escorts, assessment of the types of
information to be protected and the development of routes for OPCW inspectors to follow in the
plant. There will be a need to decide on the nature and extent of confidential business
information at the plant level as well as mechanisms to ensure its security.

VI. The National Authority and Article IX

There are the requirements under Article IX—Consultations, Co-operation and Fact-finding—
which are vital to the proper functioning of the CWC. Article IX calls upon each State Party to
‘consult and cooperate, directly among themselves, or through the Organisation or other
appropriate international procedures . . . on any matter which may be raised relating to the
object and purpose, or the implementation of the provisions, of this Convention’ and obliges
each State Party to ‘whenever possible, first make every effort to clarify and resolve . . . any
matter which may cause doubt about compliance with this Convention, or which gives rise to
concerns about a related matter which may be considered ambiguous’. In this respect the
National Authority will play an important role if requests are made concerning specific matters
of compliance. Quick response will be required and the National Authority will have to be able
to provide the OPCW with supplementary data and information to resolve such ambiguities.

VII. The National Authority and Article X

Article X concerns assistance and protection against CW. The CWC defines assistance as: ‘the
coordination and delivery to States Parties of protection against chemical weapons’. Three types
of assistance are defined as regards: (a) use of CW, (b) threat of CW use, and (c) the results
of an on-site investigation after an alleged use of CW. The types of assistance are: emergency,
supplementary and humanitarian assistance. Means of assistance are defined, inter alia, as
detection equipment, alarm systems, protective equipment, medical antidotes and treatments,
decontamination equipment and decontaminants and advice on protective measures.
Taking the context of Article X into account, a State Party: (a) has to provide assistance to the
OPCW; (b) may provide assistance to other States Parties through the OPCW; and (c) can
provide assistance directly to another State Party.
In preparing for national implementation, States Parties have to consider ways in which they
can fulfil their obligations related to assistance under Article X. Each State Party has to:

(a) consider any possible contribution which it can make to the OPCW stockpile of protective
equipment;
(b) submit not later than 90 days after the end of the calendar year information on national
programmes related to protective purposes;
(c) consider a monetary contribution to the Voluntary Fund of the OPCW;
(d) consider the information which it might be able to provide under Article X, subparagraph
7(c), in response to an appeal by the OPCW; and
(e) consider any voluntary contribution to the OPCW data bank on protection against CW.

There is a clear understanding that Article X calls for two different types of contributions and
information: (a) mandatory, and (b) voluntary. A State Party with national programmes related
to protective purposes is obliged to provide annual information on such programmes. Greater
openness and more transparency will serve to increase confidence among States Parties in the
early days of the CWC.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 161

VIII. National Authority and Old and Abandoned Chemical Weapons

Within 30 days after entry into force of the CWC, every State Party with old or abandoned CW
on its territory has to provide data on these weapons to the Technical Secretariat. If a State Party
has abandoned CW on the territory of another party it also has to submit information. The
information shall include to the extent possible information on the location, type, quantity and
the current condition of the CW and will be verified by the Technical Secretariat through initial
inspection later. The purpose of this inspection is to: (a) verify the information submitted, (b)
determine whether the CW meet the definition of old CW, (c) verify the origin of the abandoned
CW, and (d) establish evidence concerning the abandonment and identity of the abandoning
state.
After the initial inspection the ‘usability’ of the old or abandoned CW has to be determined in
accordance with the definition of old CW under Article II, paragraph 5. If the CW meets the
definition, destruction is required in accordance with Article IV and Part IV (A) of the
Verification Annex.
If abandoned CW are present, the territorial state has to consult with the abandoning state
with the goal of establishing a mutually agreed plan for destruction, which has to be approved
by the Technical Secretariat. If the abandoning state cannot be identified or is not a party to the
CWC, the territorial state may request assistance from the OPCW or another State Party in
destruction.
The National Authority of a State Party with old or abandoned CW will be involved in or
responsible for:

(a) preparing the initial declarations;

(b) preparing the initial inspection and escorting the inspectors to the site where old or
abandoned CW are located;
(c) destroying or disposing of the declared old CW, if they meet the definition of toxic wastes
under Article II, paragraph 5 (a);
(d) destroying old CW, if they meet they definition under Article II, paragraph 5 (b), based
upon an approved destruction plan which includes systematic verification by the OPCW
inspectors;
(e) negotiating the plan for destruction with the abandoning state in the event of abandoned
CW; and
(f) requesting assistance from the OPCW or other States Parties, if the abandoning state
cannot be identified.

IX. Conclusions
The National Authority is central to the success of the Chemical Weapons Convention. This is
most obvious in the monitoring of the chemical industry to ensure the non-production of
chemical weapons either advertently or inadvertently. This monitoring process will last in some
form or another for the lifetime of the Convention since all existing chemical weapons and
production facilities will be destroyed within 10 to 15 years after entry into force.
Each State Party has to give careful thought as to the structure and location of its National
Authority within government and to possible assistance from other ministerial bodies and/or
institutes. Its relationship with those industries that produce, process or consume chemicals that
appear on the CWC’s schedules, as well as those who import or export these chemicals is
crucial to the State’s ability to demonstrate compliance with the obligations under Article VI of
the Convention.
The magnitude of the task will be directly related to the nature of the chemical industry in each
162 Effective Implementation of the CWC

specific country and will be complicated by the fact that the chemical industry is a dynamic one
driven by the need for new products and new markets. The fact that few, if any, of the
chemicals on the schedules are produced presently at a given location does not mean that they
will not be produced there in the future.
At present few countries have the ability to collect the data required by the CWC nor do they
have the necessary trained personnel to assist their industry and escort the OPCW’s inspectors.
The preliminary questions National Authorities to consider include:

— how many companies, plant sites and plants have to be declared;

— how many scheduled chemicals are produced and traded;
— how and when will industrial information be collected to develop national declarations;
— how large will a State Party’s National Authority be and how much will it and the
implementation of the CWC cost;
— what kinds of training and expertise will be required by: (a) staff who deal with
declarations, and (b) inspectors (escorts);
— how will industry be informed of its rights and obligations under the CWC and national
implementation legislatio; and
— how will the State Party contribute to the different forms of assistance under Article X.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 163

Annex I. Illustrative check-list of declaration obligations

for a State Party under the CWC and the time-frame for
their applicability
I. Entry into Force
Article VI:
(a) impose specific prohibitions on activities for chemicals under Schedule 1
(b) prepare for data-monitoring and on-site verification for the chemicals on Schedule 2 and
Schedule 3
(c) prepare for data-monitoring and possible on-site verification of production facilities
producing >30 tonnes/year of discrete PSF chemicals
(d) grant inspectors access to facilities subject to on-site verification regime

Article VII:
(a) adopt measures to implement the CWC, including penal legislation to ensure the prohibition
obligation
(b) designate or establish the National Authority
(c) notify the OPCW of the National Authority
(d) inform the OPCW of the legislative and administrative measures taken to implement CWC
(e) treat as confidential and afford special handling to information and data that it receives in
confidence from the OPCW
(f) co-operate with the OPCW in the exercise of all its functions and in particular provide
assistance to the Technical Secretariat

II. Entry into Force + 30 days

Article III:
(a) declare possession or non-possession of CW
(b) declare presence or absence of foreign CW
(c) declare transfer/receipt or non-transfer/non-receipt of CW after 1 January 1946
(d) declare old CW (OCW)
-OCW before 1925
-OCW before 1946
(d) declare abandoned CW/abandonment of CW after 1925
(e) declare possession/non-possession of own or foreign CWPFs since 1 January 1946
(f) declare transfer/non-transfer and receipt/non-receipt of CW production equipment
(g) declare general plan destroying or temporarily converting of CWPFs
(h) declare presence /absence of CW development facilities since 1 January 1946
(i) declare chemical name of chemicals held for riot-control purposes

Article VI:
(a) submit initial declaration of scheduled chemicals and facilities

VA VI *:
(a) submit technical description of SSSF
(b) submit technical description of other Schedule 1 facilities
VA VII and VIII:

*VA: Verification Annex; VI: Part VI of the Verification Annex

164 Effective Implementation of the CWC

(a) submit aggregate national data on Schedule 2 chemicals (on production, processing,
consumption, import and export) and on Schedule 3 chemicals (on production, import and
export)
(b) submit information on individual facilities for Schedule 2 chemicals (which are producing,
processing, consuming or exporting) and for Schedule 3 chemicals (producing)
(c) submit information on facilities which have produced Schedule 2 or 3 chemicals since 1
January 1946

VA IX:
(a) submit information (production data) on other production facilities producing unscheduled
discrete organic chemicals >200 tonnes/year
(b) submit information (production data) on other production facilities producing unscheduled
discrete PSF chemical >30 tonnes/year

III. Entry into Force + ca 60 days

VA II:
(a) approve the list of inspectors and inspection assistants proposed by OPCW
(b) provide visas for inspectors/assistants

IV. Entry into Force + 90 days

Article I:
(a) close any CWPF

V. Entry into Force + 180 days

Article X:
(a) ready to provide assistance to States Parties attacked or threatened by CW
VA VI:
(a) conclude facility agreement for SSSF

VI. Entry into Force + 2 years

Article I:
(a) start destruction of possessed CW

VII. Entry into Force < 3 years

VA VII:
(a) apply measures on the transfer of Schedule 2 chemicals to states not party to the CWC

VIII. Entry into Force < 5 years

VA VIII:
(a) apply measures on the transfer of Schedule 3 chemicals to states not party to the CWC

IX. Entry into Force + 10 years

Article I:
(a) finish destruction of CW
(b) finish destruction of CWPF or temporarily converted CWPF
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 165

X. Entry into Force + 15 years

VA IV (A):
(a) latest date for completion of destruction of CW if so requested and approved earlier

XI. Annually after Entry into Force

annual declarations related to previous year

Article VI and VA II, III, VI, VII, VIII, IX:

(a) submit annual declarations on scheduled chemicals and facilities

annual declarations related to next calendar year:

Article VI and VA VI, VII:

(a) submit annual declarations on Schedule 1 facilities and Schedule 2 chemicals

XII. Without time-line

VA IV (B):
(a) report any new discovery of old and abandoned CW

Article VIII:
(a) pay contributions to OPCW
Article XI:
(a) review existing chemical trade controls
166 Effective Implementation of the CWC

Facility Agreements and Model Facility Agreements

under the Chemical Weapons Convention
THOMAS KURZIDEM, RONALD G. SUTHERLAND, THOMAS STOCK,
PATRICIA RADLER AND YORK VON LERSNER

I. Introduction
Facility Agreements, which by nature are international law agreements, are of major importance
for chemical industries and thus, do, to some extent, affect the implementation process of the
CWC. This paper attempts to evaluate and analyze the most important aspects relating to
Facility Agreements under the CWC in the context of future inspections activities, that will be
conducted by the Organisation for the Prohibition of Chemical Weapons (OPCW). Under the
CWC routine on-site inspections and systematic on-site inspections will be conducted for
industrial facilities, chemical weapons production facilities (CWPFs), chemical weapons
destruction facilities (CWDFs), chemical weapons storage facilities (CWSFs) and sites with old
and abandoned chemical weapons (OCW and ACW). For these activities the Convention
foresees the conclusion of Facility Agreements between a State Party and the OPCW which are
related to a specific facility subject to on-site inspections. The paper also studies some national
implementation legislation as regards Facility Agreements.

II. Facility Agreements and the CWC

Under the Convention the term Facility Agreement is defined as ‘an agreement or arrangement
between a State Party and the Organization relating to a specific facility subject to an on-site
verification pursuant to Articles IV, V, VI’.1 The purpose of such a Facility Agreement, which
will be concluded between the State Party, i.e., the National Authority, and the Technical
Secretariat of the OPCW and subject to approval by the Executive Council,2 is to govern the
activities of both the inspected site and the international inspection team. It shall (a) facilitate
future inspections; (b) protect confidential business information; and (c) secure that the time-
frames for the inspections can be kept.
Pursuant to paragraph 8 of Part II of the Verification Annex, Facility Agreements shall be
negotiated on the basis of model Facility Agreements. Model Facility Agreements are defined as
‘document(s) specifying the general form and content for an agreement concluded between a
State Party and the Organization for fulfilling the verification provisions...’.3 A model
agreement has to be held in general terms and serve as a negotiation basis for the conclusion of
more detailed Facility Agreements between States Parties and the OPCW.
As Facility Agreements will govern activities during on-site inspections, the following parties
will be involved in the negotiating process: a) management of the facility; b) National Authority;
and c) the Technical Secretariat of the OPCW.
The agreements agreed upon will have to balance the needs of confidentiality (to protect
business information) and limitation of intrusiveness against the need to demonstrate
compliance with the obligations under the CWC.

1 Verification Annex Part I paragraph 7.

2 Article VII paragraph 34 c) of the CWC.
3 Verification Annex, Part I, paragraph 19.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 167

III. Inspections and Facility Agreements

As the Convention foresees different types of on-site inspections, one has to indicate for which
facilities a Facility Agreement is required. The basic obligations for on-site inspections are to
grant access to a facility and to avoid undue intrusion into activities of the inspected facility and
not prohibited under the CWC1 These two obligations have to be balanced in the Facility
Agreement.
Facility agreements are required to conduct systematic verification through on-site inspections
and monitoring with on-site instruments for: chemical weapons (CW) (including old CWs and
abandoned CWs), CWPFs, CWSFs and CWDFs, and single small-scale facilities (Schedule 1
chemical production).
Facility Agreements are also required for Schedule 2 facilities, that will be controlled by
means of data monitoring and on-site verification. Schedule 3 and other facilities are not
required to conclude a Facility Agreement but may request one.

Part III of the Verification Annex provides the general provisions for verification measures
including Facility Agreements. For the attainment of Facility Agreements the following concept
will apply in general: promptly after a facility is declared an initial inspection takes place for
facilities subject to systematic on-site verification and monitoring by instruments. After that
inspection a Facility Agreement has to be agreed upon within specific time-frames. The time-
frame depends on the relevant Articles of the CWC for the facility.
Regime for Schedule 1 Chemicals
For facilities of this category, i.e., CWPF, CWDF, CWSF and Schedule 1 facilities, a Facility
Agreement has to be concluded not later than 180 days after the CWC entered into force or after
the facility has been declared for the first time.2 This requires that the initial inspection will be
accomplished in due time. Otherwise the information the initial inspection, which is the basis
for the Facility Agreement negotiation, cannot be used. Further verification will then be carried
out by on-site inspections, governed by the Facility Agreement for that specific facility. These
inspections have to verify that the declared quantities of Schedule 1 chemicals are correct and
that their aggregated sum not exceed 1 tonne.3
Regime for Schedule 2 Chemicals
Any facility under the control of a State Party that produces, possesses or consumes Schedule 2
chemicals will be subject to the Verification regime for Schedule 2 chemicals. The regime
requires that an initial inspection takes place as soon as possible after the facility has been
declared, preferable not later than three years after the declaration.4 Based on the information of
this inspection and the model agreement a Facility Agreement has then to be concluded not later
than 90 days after the completion of the inspection.5 The Facility Agreement will govern the
subsequent routine inspections. Different from the Schedule 1 regime and due to the wider
time-frame, the negotiations of the Facility Agreement can begin before the initial inspection
takes place. Further, the OPCW and the inspected State Party can agree that a Facility
Agreement is not needed for a certain declared plant site.6
The purpose of the inspection regime is to verify the non- production of Schedule 1
chemicals, the correctness of the declared information and the non- diversion of Schedule 2
1 Article IV paragraphs 9 and 10 of the Convention.
2 Part III of the Verification Annex paragraph 4.
3 Verification Annex, Part VI paragraph 21.
4 Part VII of the Verification Annex paragraph 16.
5 Part VII of the Verification Annex paragraph 24.
6 Part VII of the Verification Annex paragraph 24.
168 Effective Implementation of the CWC

chemicals for purposes prohibited under the CWC. In this respect the importance of a suitable
Facility Agreement for the facility and the Organization has to be emphasized, especially if one
takes the short time limit, i.e., 96 hours for these inspections into account.
Regime for Schedule 3 and other chemicals
Schedule 3 and other chemicals, which are subject to on-site inspections,1 represent the
exception to the above mentioned concept. In general, a Facility Agreement required under the
Convention. However, a Facility Agreement can be prepared upon request of a State Party.2
This point may be of importance to commercial plant sites. Without a Facility Agreement there
is no limitation for the inspection teams' access to the plant site, except through managed
access. So any scheduled or other facility owner who foresees difficulties in negotiating plant
site access may ask the National Authority to request the development of a Facility Agreement.
But it must be mentioned that industry does not recommend a Facility Agreement for Schedule
3 facilities since the odds of a routine inspection does not warrant the effort involved in the
conclusion of a Facility Agreement.3

IV. Model Agreements

It is outlined in the Verification Annex that Facility Agreements are to be based on models that
govern the conduct of inspections in detail at a specific plant site. The Expert Group on
'Declarations and Model Facility Agreements' in the PrepCom has developed and drafted
various model Facility Agreements.4 But these model agreements are still under review. A draft
(of 27 Feb. 1995) is currently under consideration for Schedule 2 facilities. Once the model
Facility Agreements are agreed upon, they have to be adopted by the Conference of States
Parties at its First Session.
The purpose of these model agreements are many. The most important one is of course, on
the one hand, as for as possible, a uniform application of the OPCW inspection regime in order
to ensure equitable treatment and, on the other hand, to be flexible enough to take the specific
circumstances of each facility into account. Further, this concept should reduce the cost for
industry involved in the negotiation of the actual Facility Agreement. Finally, the model
agreement provides for the facility management a reasonable predictability as concerns the
actions taken by inspectors during any following inspection.5
Due to the fact that the model agreement is the basis for conducting negotiations of an actual
Facility Agreement, it became obvious that not one model agreement can be developed for all
different facilities. Thus, various model agreements have to be developed, which are facility-
type related and refer to a well defined category of facilities.6

V. National Authority and Facility Agreements

Facility Agreements will be concluded directly between States Parties and the OPCW and
thus, be international legal documents. However, the usual situation will be that the National
Authority, on behalf of the State Party, and the Technical Secretariat, on behalf of the OPCW,
will negotiate and conclude Facility Agreements. The importance of a Facility Agreement for the

1 See for that Part IX of the Verification Annex paragraph 1.

2 Part IX of the Verification Annex paragraph 16.
3 See Paper present by Peter J. Plant, at page 2.
4 See for example the 'Expert Group on Declarations and Model Facility Agreements: First report', PC-VI/B/WP.16,
25 March 1994.
5 Paper presented at the combined industry meeting at the Hague, 25-27 June 1995 at p. 1.
6 The work of the Expert Group focuses therefore mainly on Schedule 2 model Facility Agreements at the moment.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 169

conduct of on-site inspections and the direct effect on the inspected facilities poses diverse tasks
to the National Authority.
Tasks of National Authorities as regards Facility Agreements
(1) As the purpose of a Facility Agreement is to ensure effective verification measures by the
inspection team as well as sufficient protection of the interest of the facility, the National
Authority has to mediate with both sides - the facility management and the Technical Secretariat
- while conducting negotiations of the Facility Agreement.
(2) A major task of the National Authority will be to make the Model Facility Agreement
operational on a national level. Due to the general nature of model Facility Agreements, they
have to be adopted to the specific conditions of the State Party concerned. Thus, a concept has
to be developed, which complies with OPCW requirements and make the Facility Agreement
operational at the national level. This requires that the National Authority identifies areas, where
a uniform approach can be taken and where specific regulations are required by the facility.
(3) For the preparation of Facility Agreements at a national level the National Authority has to
identify all potential facilities, including Schedule 3 and other chemical facilities for which a
Facility Agreement may be needed. This can be done on the basis of declarations by facilities
due to the national legislation requirements. A second step of the National Authority is to enter
into consultations with the identified facilities, explaining their obligations and rights of the
management. This requires that the management is prepared to spend significant amount of time
in the preparation of a Facility Agreement and is given a say in the conclusion of it.
(4) The National Authority has further to prepare for the initial inspections. In this respect the
National Authority has to prepare the management of a facility for the various activities carried
out by the international inspection team as well as to ensure that the declared information, on
which the initial inspection is based, is correct. Insufficient or incorrect information will
certainly have a negative impact on negotiation of a Facility Agreement. For the concerned
facility this could mean a tighter inspection mandate for future inspections, for the concerned
State Party a loss of confidence at a political level. To find out about the correctness of the
information, the National Authority has to rely on consultations with the facility management,
as national inspection rights for a National Authority is not required under the CWC and thus,
mostly not to be found in implementation legislation. In most cases facility management will co-
operate in this respect, especially after they become fully aware about the consequences of non-
compliance. However, this might not be true for all cases. In order to prevent an initial
inspection being conducted on the basis of insufficient information, it might be useful to
empower the National Authority with inspection rights, at least for an intermediate period of
time.1
All tasks listed above are rather time and staff consuming, especially for countries with a
large number of facilities, subject to the requirement of a Facility Agreement. Thus, States
Parties have to take this into account in the planning of the establishment of the National
Authority.

V. National legislation concerning Facility Agreements

The most advanced and comprehensive regulation regarding Facility Agreements can be found
in the US draft implementing legislation, Section 401 (f) of which reads as follows:

(1) Inspections of plants, plant sites, or other facilities or locations for which the United States

1 The implementation Act of Australia provides for the conduct of national compliance inspection carried out by
national inspectors, although this is not specifically mentioned in the Act.
170 Effective Implementation of the CWC

has a Facility Agreement with the Organization for the Prohibition of Chemical Weapons shall be
conducted in accordance with the Facility Agreement.
(2) Facility Agreements shall be concluded for plants, plant sites, or other facilities or locations
that are subject to inspection pursuant to paragraph 4 of Article VI of the Chemical Weapons
Convention unless the owner and the operator, occupant or agent in charge of the facility and the
Technical Secretariat agree that such an agreement is not necessary. Facility Agreements should
be concluded for plants, plant sites, or other facilities or locations that are subject to inspection
pursuant to paragraph 5 or 6 of Article VI of the Chemical Weapons Convention if so requested
by the owner and the operator, occupant or agent in charge of the facility.
(3) The owner and the operator, occupant or agent in charge shall, to the extent practicable
consistent with the obligations of the United States under the Chemical Weapons Convention,
participate in the negotiation of all Facility Agreements concluded pursuant to the Convention.

The approach taken by the CWCIA in regard to Facility Agreements is the most
comprehensive and progressive one in comparison to other legislation reviewed. Section 401
(f) of the CWCIA defines the role of facility owners in the negotiations process of Facility
Agreements as being extensive. Paragraph 3 gives owners the right to participate in the
procedure. It is not a question of whether or not such right exists, but rather the extent of this
right as limited by practical and legal considerations. Paragraph 2 is even more interesting since
it mentions a direct link between the owner of a facility and the Technical Secretariat for cases
where a Facility Agreement for a Schedule 2 facility is found to be unnecessary. It goes without
saying that this process would, of course, include the assistance of the National Authority.
However, this provision is mainly intended to prevent that the National Authority may over-rule
the facility management, if the management wants to have a Facility Agreement.
The most important point in the current draft, however, is that it mentions the possibility of a
request by an owner of a Schedule 3 facility or a facility producing other chemicals pursuant to
Part IX of the VA to conclude a Facility Agreement. The wording ‘should conclude’ implies
that the National Authority is not obliged to conclude such an agreement. However, since one
of the main tasks of the National Authority will be to protect reasonable interests of its industry
this provision is not likely to be ignored if it enters into force in its current form. This reflects
the general approach of the US draft implementing legislation to give the protection of private
property top priority.
Other legislation reviewed, so far, takes a less advanced approach. In Germany, Article 13 of
the Implementation Act empowers the Export Control Office to negotiate Facility Agreements
with the OPCW and to conclude such arrangements with the OPCW in co-ordination with the
Ministries of Foreign Affairs and Economics. In cases where there is an obligation to conclude
a Facility Agreement, the National Authority is requested to consult with the management of the
affected facility before the negotiations of a facility Agreement with the OPCW starts. In all
other cases, i.e., Schedule 3 facilities and other chemical facilities, prior consent of the facility
management is required. The most interesting aspect of this regulation is that it establishes
certain important rights for the owner of a facility, most important the right to participate in the
procedure and to be kept informed about the process.
Section 76 of the Australian Act specifically deals with Facility Agreements and assigns to the
Minister of Foreign Affairs the powers to negotiate and conclude Facility Agreements with the
OPCW and gives him wide discretion regarding the contents of a Facility Agreement.
However, Section 76 makes no indication of what role facility owners should have in this
procedure. The fact that facility owners are not granted specific procedural rights under this act,
however, does not necessarily mean that they have no rights at all. The extent of their
participation will depend both on practical and legal considerations.
Neither the Dutch nor the Swedish implementing legislation, this far, includes any regulation
regarding this problem. The Swedish Act on Inspections gives the inspection team very broad
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 171

rights in the inspection process and in the ‘travaux prepartoires’ it states that the Government or
a designated authority, i.e., the National Authority, shall take necessary decisions during
inspections. As concerns Finland the conclusion of facility Agreements are only stated
indirectly. The ‘travaux prepartoires’ to the Finnish CWC Act state the need of facility
Agreements. Reasons why Finland nor Sweden provide direct legislation as regards the
conclusion of Facility Agreements is probably because they have very few, if any, facilities that
require such agreements.
172 Effective Implementation of the CWC

Routine Inspections and Inspection Hours

THOMAS KURZIDEM, RONALD G. SUTHERLAND, THOMAS STOCK,

PATRICIA RADLER AND YORK VON LERSNER

The text of the Verification Annex (VA) of the Chemical Weapons Convention (CWC) briefly
touches on the time allocated to a routine inspection of an industrial facility.
In Schedule 2 it states that: ‘The period of inspection shall not last more than 96 hours....’
The inspection period for Schedule 3 is: ‘.... not last more than 24 hours....’ and when
inspections are implemented for other chemical production facilities the inspection time is again
24 hours. In all cases there is the provision that ‘extensions may be agreed between the
inspection team and the inspected State Party.’
As required by Article VI, ‘each State Party shall grant to the inspectors access to facilities as
required in the Verification Annex’ but there are specific rules that the inspectorate must follow
in the manner in which they conduct an inspection. In particular, ‘The activities of the
inspection team shall be so arranged in a way as to ensure the timely and effective discharge of
its functions and the least possible inconvenience to the inspected State Party or to the facility or
area inspected.’
It would be pertinent to consider and agree on the meaning of a 96 hour inspection and a 24
hour inspection given that such inspections must be carried out in a way that inconveniences to
the plant site to the smallest extent possible, i.e., the inspection must complete its in-plant
activities in as short period as practical and so presumably within normal working hours of a
chemical plant. It is likely that, due to the nature of the production activities, a chemical plant
will either operate:
- continuously; or
- a working day of say ten hours.
It is also likely that small volume chemicals will be produced, processed or consumed in a
non-continuous batch process as business circumstances require.
Any inspection scenario requires the presence of the national escorts and a designated senior
member of the plant’s management team who can instruct plant workers to carry out the
instructions of the international inspectors after it is agreed that the tasks are necessary to the
conduct of the inspection.
It then becomes necessary to agree on the actual elapsed time that an inspection team may
spend at an industrial site assuming that the inspection becomes more complex than anticipated.
If we assume that 96 hours means that there are four working days that the team can spend on
the facility grounds, then this means that the team will be restricted to the normal working day
of that facility. If we have a ten hour day where senior manager are available then the inspectors
will have access to the plant for 4 working days x 10 hours or 40 hours in a so-called 96 hour
inspection and for 10 hours for the corresponding 24 hour inspection.
In addition to the requirements of the CWC industrial facilities are governed by a number of
legislative acts relating to health, safety and environment. These acts and regulations often limit
the hours that any individual can work and where they must work as teams. In the case of
Schedule 2 facilities it is likely that the extent of a working day can be agreed upon and the
actual access needs of the inspection team but in the potentially intense 24 hour inspection,
particularly where there is no previous experience of an OPCW inspection nor a concluded
Facility Agreement, the question of available time for an inspection becomes very important.
It is more than obvious that for Schedule 3 and DOC facilities, in the absence of a Facility
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 173

Agreement, the PrepCom must find an agreed and workable solution for this problem.

Inspection hours and national implementing legislation

It goes without saying that the national regulations regarding inspection hours must comply
with the respective regulations of the CWC. However, any uncertainties about the
understanding of the inspection hour regulations in the CWC may cause as well a problem at
the national level.
If we assume that the understanding of inspection hours for a Schedule 2 facility are meant to
be continuous this would, at least in principle, require that inspection team must be given access
to a site at any time during the in-country period if so requested by the inspection team. This
would mean that an inspection team could also request access outside the regular business and
working hours, i.e. during hours where senior management personnel will be available.
However, it must be stated that inspection scenarios currently developed within the PTS
envisage relatively short periods of on-site inspection hours in Schedule 2 facilities and that
inspections normally would take place during regular business and working hours. However,
from the perspective of future OPCW inspectors the CWC imposes no restrictions in this
respect. The only restriction follows from the overall obligation to conduct inspections in a
timely and effective manner and to minimize the inconveniences for the inspected State Party or
facility to the extent possible.
In this context it is interesting to note that the German Implementation Act explicitely restricts
the conduct of routine inspections to ‘regular business and working hours’. The way the terms
is used implies that this will require the availability of senior management personnel. Thus,
under this regulation inspections would be possible at least during 10-12 hours per day. Thus,
under the Act an inspected facility could reject access to a facility outside these hours. If we
assume that the above stated interpretation of the rules of the CWC is correct, it becomes
apparent that there could arise a conflict between the national regulations and those of the CWC.
Finally, it should be mentioned that with regard to the CFE treaty Germany made a reservation
that inspections could only take place during regular working and business hours.
174 Effective Implementation of the CWC

Industrial Declarations and the CWC

RONALD G. SUTHERLAND, THOMAS STOCK, THOMAS KURZIDEM,

PATRICIA RADLER AND YORK VON LERSNER

One of the major aims of the Chemical Weapons Convention (CWC) is the prevention of the
production of chemicals for chemical weapons (CW) production. This is not an easy task given
that the definition of a chemical weapon is complex and based on the ‘general purpose criterion’
which means that a toxic chemical is only a weapon when it is intended for use as a weapon.
This bedevils their control since it is possible to divert legal production into illicit use. The
control strategy developed under CWC requires that the production and use of chemicals that
could present a danger to the convention be monitored but that the system used does not unduly
hamper the legitimate use of these chemicals.
The eventual system developed devides chemicals into three schedules essentially based on
the risk certain chemicals pose to the CWC and that the risks posed by other chemical
production facilities be dealt with under ‘Discrete Organic Chemicals’ with those containing
Phosphorus, Sulfur or Fluorine, ‘PSF’ being separated out for special scrutiny.
The CWC has envisaged a two level system: - international control by the Organization for
the Prohibition of Chemical Weapons (OPWC) and national control by a National Authority
(NA) representing a State Party. The State Party will demonstrate compliance with the CWC by
presenting declarations on:

- Schedule1;
- Schedule 2;
- Schedule 3; and
- Discrete Organic Chemicals (DOCs)

As required by the Verification Annex of the CWC, the OPWC through the Technical
Secretariat (TS) will, by routine inspections and examination of the data supplied, determine
that a given State Party has demonstrated its compliance with the CWC.
The above is a dramatic oversimplification of what has to be done; it leaves out the
compelling fact that most States Parties do not produce, process, or consume chemicals directly
- industry and individuals do. It is then the task of the State Party usually through its National
Authority to devise a system of obtaining the required information in a timely fashion from its
industry and other users of chemicals. At this time most signatories do not know the extent of
the task of information collection required by the CWC declarations.
In a discussion of industrial declarations there is no need to examine the requirements of
Schedule 1 only Schedule 2, 3 and DOCs are likely of general industrial interest. Following the
risk concept, the monitoring regime becomes less invasive as one moves from Schedule 2 to 3
to DOCs.
Schedule 2 Requirements
If one ignores ‘past production for CW purposes’, then the following declarations are required
for Schedule 2:

1. Initial Declarations on aggregate National Data (AND) and plant sites 30 days after entry
into force (EIF);
2. annual Declarations on past or completed activities 90 days after year end for AND and
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 175

plant sites;
3. annual Declarations for anticipated activities 60 days before the annual production cycle
begins at plant sites; and
4. additional production over that declared under 3 above should be declared 5 days before
the production cycle begins.

The list of agreed Schedule 2 chemicals appears in the CWC as the Annex on Chemicals.
Article VI of the Convention covers all ‘Activities not prohibited under this Convention’ and the
required declarations are described in Part VII of the Verification Annex with the full
expectations of the Provisional Technical Secretariat (PTS) described in a Declaration
Handbook.
Schedule 2 requirements include aggregate national data (AND) on quantities produced,
processed, consumed, imported, and exported of each Schedule 2 chemical including full
specification of imports and exports for each chemical involved. Declarations are required for
all plant sites involved in production, processing or consumption above a threshold amount of:

- 1 kg of a ‘*’ chemical in 2A;

- 100 kg of other chemicals in 2A; and
- 1 tonne of a chemical in 2B.

A considerable amount of detailed information is required on the actual plants and plant site
where a Schedule 2 chemical is produced above the threshold. The initial declaration for each
plant site has to cover the three previous calendar years.

There are two major unresolved issues with respect to Schedule 2; these are

- the precise meaning of AND; and

- mixtures containing a ‘low concentration’ of a Schedule 2 chemical.

The CWC does not give a definition of aggregate national data as it was initially assumed that
AND would cover all production including that from sites below the declaration threshold. This
is disputed by some who prefer the aggregation of data from declared sites; this would provide
no additional information since it merely involves the addition of all declared data on
production, processing and consumption above the threshold together with the actual import
and export quantities. The matter will be further complicated by the PTS´s proposed ‘Rounding
rules’ where, for example, quantities less than 500 kg would be rounded down to 0 tonne,
e.g., production, processing or consumption of 1,5 tonnes would be declared as 1,0 tonne,
while 1,6 tonnes would be rounded up to 2 tonnes.
The CWC text states that declarations ‘are not generally required for mixtures containing a
low concentration of a Schedule 2 chemical’ and goes on to state that declarations are only
required in accordance with ‘guidelines’ that relate to the ease of recovery of the Schedule 2
chemical and its total weight. The guidelines are to be developed by the Preparatory
Commission (PrepCom) and approved by the conference of States Parties (cf. Article VIII).
The Expert Group seems now to have reduced its options to two: (I) agreement on total weight
and a percentage below which a declaration would not be required provided that the Schedule 2
chemical was not isolated, (II) an elaboration of criteria related to ease of recovery together with
quantitative thresholds. It would seem that the important points should be (I) is the quantity
above the threshold for declaration for the chemical concerned? (II) can the chemical be
selectively converted, without separation from the mixture, to a Schedule 1 chemical?
In either case, the mixture will pose a risk to the CWC and the process should be one that
176 Effective Implementation of the CWC

leads to a declaration and a routine inspection where the threshold is exceeded.

Schedule 3 Requirements
The following declarations are required for Schedule 3 chemicals:

1. Initial declarations on AND and on plant sites 30 days after EIF;

2. annual declarations on past or completed activities 90 days after year end both for AND
and plant sites;
3. annual declarations for anticipated activities at plant sites 60 days before the year begins;
and
4. any proposed change after the anticipatory declarations to be made 5 days before additional
production begins.

The list of agreed Schedule 3 chemicals appears in the CWC as the Annex on Chemicals as
described in Article VI. Part VIII of the Verification Annex describes the required declaration
with the PTS´s Handbook on Declarations providing additional details.
Schedule 3 requirements include aggregate national data and plant sites but only specifies
production, imports and exports with no requirements related to processing or consumption.
Declarations are needed for plant sites producing more than 30 tonnes of a Schedule 3 chemical
but the production is expressed in ranges:

- 30 to 200 tonnes;
- 200 to 1000 tonnes;
- 1000 to 10000 tonnes;
- 10000 to 100000 tonnes; and
- above 100000 tonnes.

The same two problems as related under Schedule 2 exist for Schedule 3 chemicals: (I)
aggregate national data, (II) low concentrations. Again ‘guidelines’ have to be developed as to
when declarations are required for Schedule 3 chemicals which are part of mixtures and an
understanding of what AND means in the CWC.
There are two problems relating to AND. If it relates to total production at both declared and
non declared plant sites then it is a straight forward production number that assesses monitored
as opposed to non-monitored production. If it is regarded as a summation of all declared
production than it becomes a non-meaningful number in that it would involve the summation of
‘production ranges’. The only useful way to provide such AND would be to provide the
number of producers in each of the production ranges. If as already noted with Schedule 2, the
AND is merely a summation of declared plant data then there is no point to the collection of the
data and the resources implied.
A decision as to whether a declaration is necessary for a mixture containing a Schedule 3
chemical should depend on (I) is the quantity involved greater than the threshold amount? (30
tonnes in a calendar year), (II) could the Schedule 3 chemical be easily separated or can it be
converted to a Schedule 2 (1) chemical without isolation from the mixture to provide another
scheduled chemical in greater than a threshold quantity? If the answer to either of these is Yes,
then it should be considered as production that has to be declared under the CWC.
Other Chemical Production Facilities
Since there are many chemicals that are not on the schedules but which could play a role in CW
development, the CWC negotiations looked for solutions to the problem of ensuring that
facilities capable of being used or converted into facilities that could be used for the production
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 177

of scheduled chemicals or other chemicals that could pose a threat to the CWC were included in
a monitoring regime. The strategy adopted involved a declaration on other chemical production
facilities. The production was classified as ‘unscheduled discrete organic chemicals’ with a
subclass of ‘unscheduled discrete organic chemicals containing the elements Phosphorus,
Sulfur or Fluorine’. These are known as DOC and PSF chemicals respectively.
In this class declarations are required for plants that synthesize:

- 200 tonnes or more of DOC´s; and

- 30 tonnes or more of PSF chemicals.

The declaration requirements are (I) declaration of plant sites 30 days after EIF (2) annual
update of this list 90 days after the calendar year end.
The list of plant sites should also include an aggregate amount of the production of each DOC
given in the ranges:

- under 1000 tonnes;

-1000 to 10000 tonnes; and
- above 10000 tonnes.

The production of PSF chemicals in PSF plants is to be expressed in the aggregate ranges:

- under 200 tonnes;

- 200 to 1000 tonnes
- 1000 to 10000 tonnes ; and
- above 10000 tonnes.

There is no list of DOC`s nor PSF chemicals in the CWC, the declaration requirements are
found in Part IX of the Verification Annex with other information to be found in the Declaration
Handbook.
The CWC provides the following definition for DOC´s:
any chemical belonging to the class of chemical compounds consisting of all compounds of
carbon except for its oxides, sulfides and metal carbonates, identifiable by chemical name, by
structural formula, if known, and by Chemical Abstracts Service registry number if assigned.

The above definition is all-encompassing and must have some restrictions attached to it. The
first exceptions were made for plant sites that exclusively produced explosives or
hydrocarbons. The term hydrocarbons includes all the normal processes, chemical and
physical, carried out in petroleum refining to produce chemicals containing only carbon and
hydrogen and these are excluded from the term production in Part IX of the Verification Annex.
There clearly is still a substantial amount of work to be done on DOC exemptions, e.g.,
polymers from monomers, beverages from a fermentation process, high sulfur crudes etc. A
specific process whereby a DOC is excluded from monitoring should be developed.
The Declaration Handbook and the National Authority
The PTS has, as part of its activities, drafted a handbook for the use of National Authorities in
compiling CWC information for transmission to the Technical Secretariat of the OPCW. For
most NAs, Section B as Industrial Declarations will form the major component of their
declaration activities. As currently constructed it seems to be complex and unwieldy and so it
should be carefully scrutinized to see if it can be simplified. It does not appear to be directly
applicable to the task of obtaining the required raw data from industry by a National Authority.
178 Effective Implementation of the CWC

Schedule 2 contains 7 individual compounds and 7 families of compounds and so will form a
group of approximately 30 compounds to be declared; there are 17 compounds on Schedule 3
and so one may estimate that some 50 compounds could be declared when produced above the
threshold. Each one of these scheduled chemicals will have to be declared separately when there
is activity above the threshold.
The following abridges the declaration forms suggested by the PTS in their handbook.

Schedule 2:
Declarations No. of Forms

AND - initial 4
- annual 4

Plant sites
- initial 6
- annual (past) 6
- annual (anticipatory) 6

Additional Activities 7

Total 33

Schedule 3:
Declarations No. of Forms

AND - initial 4
- annual 4

Plant sites
- initial 4
- annual (p) 4
- annual (a) 4

Additional Activities 5

Total 25

Other Chemical Production Facilities:

Declarations No. of Forms

initial 3
annual update 3

Total 6

This combination suggests that for each Schedule 2 chemical produced there could be a need
for as many as 33 declaration forms, 25 for each Schedule 3 chemical and 6 for the DOC´s
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 179

where there is PSF production. These are the requirements over the first cycle of initial and
annual update declarations over the first year.
We could assume that an average workload for a National Authority could comprise of:

5 Schedule 2 companies,
85 Schedule 3 companies,
150 DOC producers.

This means that the National Authority would have to deal with 240 companies producing
chemicals at a number of plants in various plant sites, i.e., there will be more chemicals than
companies and also more plant sites than companies.

If one assumes that each company has only one plant site at which it produces:

two Schedule 2 chemicals;

three Schedule 3 chemicals; and
three DOC´s

then the initial declaration requirements are:

Schedule 2 2x4x5 40
Schedule 3 3 x 4 x 85 1020
DOC´s 3 x 3 x 150 1350

for a total of 2410 AND declarations.

The initial plant site declaration would be:

2x6x5 60
3 x 4 x 85 1020

for a total of 1080, i.e., the National Authority would need to be able to process about 3500
declarations within the first year after entry into force. This calculation is based on a modest
number of companies with a minimal product set and only one plant site per company.

It is clear from this that before entry into force each National Authority needs to know:

- the number of chemicals to be declared;

- the number of plant sites to be declared;
- the number of plants involved; and
- the number and type of declarations required.
Conclusion
The PrepCom, the PTS and the Expert Groups have made a great deal of progress in preparing
for entry into force in developing a methodology for collecting the required information in a
form that is suitable for the OPWC to ensure that a State Party´s industrial activities are in
compliance with the Convention. The current structure of the declarations seems to be
unnecessarily complicated and not easily applicable to the task of the National Authority in
obtaining data from the chemical industry. The model devised also suggests that the volume of
declarations, even for a State Party with a small chemical industry, would best be carried out
using computers for data transfer.
180 Effective Implementation of the CWC
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 181

Declaration Thresholds and Aggregate National Data

RONALD G. SUTHERLAND, THOMAS STOCK, THOMAS KURZIDEM,

PATRICIA RADLER AND YORK VON LERSNER

Both Schedule 2 and 3 under the Chemical Weapons Convention (CWC) invole the requirement
of declaring aggregate national data (AND) without the CWC providing a definition of AND.
There are substantive differences in the requirements:

- Schedule 2 includes quantities produced, processed, consumed, imported and exported; and
- Schedule 3 includes quantities produced, imported and exported

Plant site declarations also differ in that Schedule 2 declarations include producing,
processing and consuming while Schedule 3 only requires data on production. In addition,
there are significant differences on the reporting thresholds.

Schedule 2 Schedule 3
2A* 1kg 30 tonnes
2A 100 kg
2B 1 tonne

In the case of Schedule 2 the declaration requirement is for the total amount produced. The
initial declaration will cover three years with annual declarations being related to the previous
calendar year. In contrast, Schedule 3 only requires that the declarations be given in ranges:

30 - 200 tonnes;
200 - 1000 tonnes;
1000 - 10000 tonnes;
10000 - 100000 tonnes; and
above 100000 tonnes.

This presents several problems for the National Authority:

- how does one define AND?

- is there a different definition required for Schedules 2 and 3?; and
- what does an NA report to the OPCW?;

There is a debate as to what the CWC negotiators meant by "aggregate national data": Does
this phrase mean the mere aggregation of all the production, processing and consumption above
the threshold plus the data on imports and exports or something more, i.e., the total activity in
Schedule 2 chemicals as obtained by a National Authority? If the former, then it would have
been better to term it "Aggregate National Declaration". The Expert Group on Industrial
Declarations Requirements has taken the simplest view that what is required for Schedule 2 is
that the "aggregate national production equals the total of all individual production figures on
the declared Schedule 2 plant sites". This is arithmetic and adds nothing to the plant declaration
data; in particular, it tells you nothing of aggregate production below the threshold level and
182 Effective Implementation of the CWC

gives you no information at all for these States Parties where all chemical production involves
small chemical plants.
It does require that AND be interpreted differently for Schedule 3 production since there the
plant data is reported in ranges, i.e., it is impossible to aggregate data reported in ranges in any
meaningful way. There would appear to be two possible solutions. One is that the declaration
of Schedule 3 data should be made in greater precision than the ranges demanded by the CWC
while the other would involve giving the total number of plants producing in each of the
requisite tonnage ranges.
Switzerland, for example, has suggested that amounts should be reported at one tenth of the
threshold value for each class of chemicals. In the case of Schedule 3 they suggest accuracy at
the ten tonne level i.e. plants report to the National Authority to the ten tonne level to produce
AND and that this should be transformed into a range value in the declaration to the OPWC as
required by the Convention.
The above approaches are suitable for declarations made where verification is likely to be
made by on-site inspections given that inspection thresholds are a factor of ten greater than
declaration thresholds. In other words they do fit with the needs of the Technical Secretariat of
the OPCW. They do not provide complete transparency in national activity with scheduled
chemicals.
If one steps back to the activities of a National Authority and the implementing legislation
required to allow an NA to collect data on scheduled chemicals, it is almost certain that the NA
will require data on all production facilities engaged in Schedule 2 and 3 production as well as
processing and consumption facilities for Schedule 2 chemicals. This information will be
required before the question of production thresholds can be applied and is of particular
importance where actual production is below the threshold quantities. It is likely then that most
National Authorities could make a more detailed declaration on Aggregate National Data than
the Expert Committee appears to have recommended. It should also be noted that there are no
thresholds for data on imports and exports.
This appears to leave a lacuna in the reporting system in that facilities producing Schedule 2
below the threshold will be unreported while declarations will be required for many discrete
organic chemicals of lower risk to the Convention.
It is suggested that National Authorities should be encouraged to make more detailed
declarations on AND to the OPWC than required by the CWC as interpreted by some of the
Expert Committees in order to increase the level of confidence amongst States Parties as to the
activity levels particularly in Schedule 2 chemicals.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 183

Declarations, Low Concentrations and Mixtures

RONALD G. SUTHERLAND, THOMAS STOCK, THOMAS KURZIDEM,

PATRICIA RADLER AND YORK VON LERSNERr

Another unresolved problem left by the CWC for resolution by the PrepCom and final approval
of the Conference of States Parties was the case of where a mixture contained a "low chemical
concentration" of either a Schedule 2 or 3 chemical. The Convention merely states that
declarations will only be required in accordance with guidelines to be developed and approved.
There are two fundamental possibilities; a chemical is produced as a byproduct of an industrial
process and it has some commercial value or it is part of a waste stream and of no particular
value to the producer.
In the case of Schedule 2 one would also has to consider byproducts of processing or
consumption. It is unlikely to be a problem with a finished product, either imported or
exported, unless a small amount of a scheduled chemical formed part of a formulated material.
The guidelines for low concentrations should relate to (I) declarable quantities (II) ease of
separation and (III) ease of subsequent chemical reaction without isolation to produce a
chemical of greater concern to the Convention, i.e., Schedule 1 from a Schedule 2 chemical,
and Schedule 2 (or 1) from a Schedule 3 chemical.
It should be recalled that a Schedule 2 chemical has to be declared at the following quantities:

- 1 kg of chemical * in 2A
- 100 kg of 2A chemical
- 1 tonne of 2B chemical

and, for Schedule 3:

- 30 tonnes of Schedule 3 chemical

It seems unlikely that a completely general set of guidelines could be developed since the fate
of any mixture normally will depend on the chemical properties of the components of the
mixture and the concentration level of the component of interest. The aims of the possible
verification inspection should also be taken into consideration. These are, for Schedule 2:

- absence of any Schedule 1 chemical (especially production);

- consistency with declarations; and
- non diversion of Schedule 2

while for Schedule 3:

- consistency with declarations; and

- absence of Schedule 1 chemicals (especially production).

It is suggested that the following points should be considered in setting guidelines:

Schedule 2
(I) irrespective of concentration, the quantity produced or processed exceeds a declarable
184 Effective Implementation of the CWC

amount for the chemical involved;

(II) the substance could, in principal, be readily separated and stockpiled or otherwise
disposed of; and
(III) the substance can be chemically converted into a Schedule 1 chemical without
separation.
Schedule 3:
(I) irrespective of concentration, the quantity produced exceeds a declarable amount;
(II) the substance could, in principal, be separated and stockpiled or otherwise disposed of;
(III) the substance can be chemically converted to a Schedule 1 chemical without separation;
and
(IV) the substance could be used as the starting material in the production of a Schedule 2 or
Schedule 1chemical at a level above the threshold without separation.

No declarations should be required if the substance forms part of a waste system which is
used as the feed for an incineration or other irrecoverable waste processing as long as it is
demonstrated that such a system cannot be bypassed. Waste treatement plants where a
scheduled chemical is recovered for further use should be declared at the appropriate threshold
level.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 185

The Chemical Weapons Convention and Discrete

Organic Chemicals

RONALD G. SUTHERLAND, THOMAS STOCK, THOMAS KURZIDEM,

PATRICIA RADLER AND YORK VON LERSNER

Part 6 of Article VI of the Chemical Weapons Convention (CWC) states that facilities specified
in Part IX of the Verification Annex shall be subject to data monitoring and eventual on-site
verification. Part IX of the Verification Annex is the ‘Regime for other chemical production
facilities’ and there is a declaration requirement for:

- more than 200 tonnes of unscheduled discrete organic chemicals (DOCs)

produced by synthesis; and
- more than 30 tonnes if the DOC contains the elements Phosphorus, Sulfur or
Fluorine (PSF-Chemicals, PSF-plants)

The CWC text for the above lists excludes ‘plant-sites that exclusively produced explosives
or hydrocarbons’.
The CWC defines a DOC as follows:
‘Discrete Organic Chemical ‘ means any chemical belonging to the class of chemical
compounds consisting of all compounds of carbon except for its oxides, sulfides and metal
carbonates, identifiable by chemical name, by structural formula, if known, and by Chemical
Abstracts Service registry number, if assigned.

In principle, there are two problems with this text1 in that elsewhere the CWC defines
production as ‘its formation through chemical reaction’ as opposed to ‘by synthesis’ and the
DOC category is very broad even allowing for the basic production of hydrocarbons and
explosives ‘exclusively’. The debate on how one should limit the category of DOCs and on
what constitutes a method of production which could be of interest to the implementation of the
CWC is still ongoing and of major concern both to the Preparatory Commission, embryo
National Authorities and the chemical industry because of its potential impact on declaration and
inspections costs. The debate is essential but there is a danger that it could be used to weaken
other aspects of the CWC´s verification provisions by developing definitions that are
unnecessarily restrictive.

The main centres of discussions involved Expert Groups under the aegis of Working Group B:

- Combined Group of Experts on Industrial Declarations

- Expert Group on Chemical Industry Facilities
- Joint meetings with the Chemical Industry.

In December 1993 an Expert Group discussed the problem of polymers and stated that only

1 see Implementation of the Chemical Weapons Convention: Declarations, Discrete Organic Chemicals and Toxics,
RG Sutherland, T. Kurzidem, T. Stock, P. Radler, 3rd Workshop of the Pugwash Study Group on the Implementation of
the Chemical and Biological Weapons Conventions, Noordwijk, Netherlands, May 1995 for a related discussion.
186 Effective Implementation of the CWC

operations concerning monomers should be declared but that there might be a need for
declarations involving certain types of biopolymers.1
This was further clarified in a working paper2 when that group indicated that in its view
DOC´s should not cover:

- Oligomers and polymers whether or not containing Phosphorus, Sulfur or

Fluorine;
- Products manufactured by chemical modification of natural products that are
complex mixtures; and
- Chemicals only containing carbon and metal.

and that, within the definition of DOCs, were exclusions for carbon monoxide, carbon
dioxide, carbon disulfide and carbonyl sulphide. The group further concluded that ‘production
by synthesis’ in Part IX of the Verification Annex did not include fermentation. The term
hydrocarbon was taken to be all inclusive, i.e., irrespective of the number of carbon atoms
involved. The question of explosives was subjected to extensive analysis and it was suggested
that a formal definition be based on the transport of dangerous goods document, ST/SG/AC.10/
1/ REV 5 for explosives, Class 1, division 1:1 (see Annex I). No conclusions were reached
regarding facilities producing rocket propellants.
These issues were further discussed a the second Combined Meeting of the Expert Group on
Chemical Industry Facilities and Industry Representatives in April 1994 where it was stated
that:
proposals have been made by some delegations to exempt such chemical operations as
breweries, wineries, various chemicals produced by biological processes, polymer plants etc. from
declaration requirements. A complete list of candidate plants and facilities types that should be
considered for exemption should be drawn up.3

As far as we are aware no such list exists. This paper included a useful series of Industry
Verification Fact Sheets of which number 2 (Biotechnology), 5 (Industrial Declaration Forms)
are pertinent to the DOC debate.
The Fourth Report on Chemical Industry Issues4 did not appear to state any additional
progress on DOCs apart from further discussions on ‘complex mixture’, ‘biochemical and
biologically mediated processes ‘ in Part IX of the Verification Annex and the definition of
explosives. The Fifth Report5 did not discuss DOCs and the Sixth Report6 only briefly
discussed the issues by mentioning (a) ‘industrial products having a purity of less than 100 per
cent’ these were deemed to be DOCs if characterised by one chemical structure; (b) biochemical
and biologically mediated processes should only be considered relative to scheduled chemicals;
and (c) that chapters 29 of the Harmonised Commodity Description and Coding System (HS
System) might be of use in identifying facilities that produce DOCs. The experts also reviewed
the problems created by ‘Production by synthesis’ since the term is undefined in the
Convention.
In the Executive Secretary´s Retrospective Report7 from 1994 in reference to Chemical
Industry Issues noted that there was no new understanding with respect to: (a) discrete organic

1 PC-V/B/WP.15, Dec. 1993.

2 PC-VI/B/WP.2.
3 PC-VI/B/7, April 1994.
4 PC-VII/B/WP.7, May 1994.
5 PC-VIII/B/WP.5, Aug. 1994.
6 PC-VIII/B/WP.10, Sept. 1994.
7 PC-IX/6, Dec. 1994.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 187

chemicals including PSF chemicals; (b) the definition of production (Paragraph 12(a) of Article
II); and (c) production by synthesis used in Part IX of the Verification Annex.
The Working Group´s inability to further develop a common understanding on these issues is
detailed in their October 1994 Report1. The January 1995 meeting of this group concentrated on
the structure and content of a draft model agreement on a Schedule 2 Plant Site and no further
discussion on DOCs emerged.2
Apart from the combined meeting with industrial representatives there appears to be little
advance in understanding of DOCs3 and one of the Expert Groups priority tasks as laid out in
the Report of the Commission4 viz.:
complete discussions on the tentative understandings in regard to discrete organic chemicals
including PSF chemicals...

It should be clear from the above that the issues involved in developing declarations with
respect to Part IX of the Verification Annex are unresolved and there is no agreed
understanding of what must be declared under ‘other chemical production facilities’. At this
time there is only a minimum level of agreement on what might be excluded in addition to
hydrocarbons and explosive, e.g., polymer production, beverage fermentation. It should be
kept in mind that the initial concept related to production facilities not presently involved in
Schedule 2 or 3 production but with a capability of conversion of their present production to
compounds of potential concern to the CWC.
If one makes chemical process capability the guiding principle, the declaration, would be
limited to these discrete organic chemicals that are produced by chemical transformations that
could be used in the formation of chemical weapons agents. Three lists of chemical processes
could be developed based on the intrinsic chemistry involved in schedules 1, 2 and 3.
Chemical production facilities would be classified accordingly and an appropriate list of
declarable discrete organic chemicals prepared.
The following is suggested as a way to indicate a limitation on the declaration requirement for
DOCs. Declarations are required for any discrete organic chemical produced above the
threshold and synthesised in a single or multistep process using one or more chemical
transformation process described by the Technical Secretariat as one which could be used in the
preparation of toxic chemicals of interest to the CWC.
A Working Paper submitted by Sweden5 under the title ‘Verification of the Chemical Industry
within the general pattern of verification for a Chemical Weapons Convention’ could provide a
rational starting point for such an approach.

Chemical Transformation Processes

1. Alkylation
2. Condensation
3. Dehydrogenation
4. Esterification
5. Halogenation
6. Hydrogenation
7. Isomeration
8. Oxidation
9. Substitution.

1 PC-IX/B/WP.2, Oct. 1994.

2 PC-X/BWP.6, Jan. 1995.
3 see Report of the Executive Secretary, PC-XI/8, 21 July 1995, paragraphs 6.12 and 6.13.
4 PC-XI/7, 27 July 1995.
5 CD/1053, Feb. 1991.
188 Effective Implementation of the CWC

The above conversion processes were compiled based on the chemical reactions required to
produce the chemicals which appear on the CWC´s schedules. Chemical facilities not using
such processes could be omitted from these which have to declare their production of discrete
organic chemicals.
In this approach the onus would be on the National Authority to develop a list of chemical
production facilities which would be of no interest to the CWC since there would be no
possibility of misusing the facility for purposes prohibited by the Convention. The Technical
Secretariat would have to monitor new chemical routes to scheduled chemicals and arrange to
add other chemical transformation processes to the above list if required.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 189

Chemical Trade and Article XI of the CWC:

Some Comments

THOMAS STOCK, RONALD G. SUTHERLAND, THOMAS KURZIDEM,

PATRICIA RADLER AND YORK VON LERSNER

I. Introduction
Article VII—National Implementation Measures—is quite general in its wording and leaves it
up to individual States Parties to decide how they will implement the provisions of the Chemical
Weapons Convention (CWC). The size and stage of development of the chemical industry in a
country will have a major impact on such decisions, as will many other factors. There are two
major functions of the National Authority under the Convention: (a) the requirement to establish
a system which can meet the obligations of the State Party, and (b) the ability to provide the
chemical industry of the State Party with the assurance that no disclosure of confidential
information should occur in the process of providing the information requested to the
International Organization.
One of the most important functions of the National Authority is to meet the almost
continuous data-reporting requirement for the State Party, including data-reporting on
scheduled chemicals, data on unscheduled discrete organic chemicals including ‘PSF’
chemicals and data on research activities under the Convention. The National Authority will be
responsible for three different types of data reporting: (a) the initial declarations of the State
Party after entry into force of the Convention, (b) annual data reporting, and (c) reporting on
anticipated activities and changes in activities reported previously. There will be a need to
ensure that such data are retrievable, authorized and assessable at the National Authority level.
Included in the data reporting is information on chemical trade, both export and import, for
chemicals listed under the Schedules. The information which has to be submitted regarding
trade of chemicals is specified in the Verification Annex under Part VI, VII, VIII. In relation to
the trade of chemicals under the CWC, Article XI is important because it specifies that States
Parties shall ‘undertake to facilitate, and have the right to participate in, the fullest exchange of
chemicals, equipment and scientific and technical information relating to the development and
application of chemistry for purposes not prohibited under this Convention’.
This paper will not deal in depth with the discussion and possible solutions on the debate
about Article XI. It will deal more with the States Parties obligations in the direction of trade
with chemicals.

II. Export control measures and Article XI—the debate

A primary controversy as regards the future of export control regulations is whether: (a) to
keep existing export control measures at various levels (national, regional, and international,
such as the Australia Group) until the States Parties have evidence that an export control system
functions under the CWC; or (b) upon entry into force to review all existing measures and
abandon organizations such as the Australia Group. The subject is highly politicized,
controversial and sensitive because it involves different views on the CWC: (a) the CWC as a
non-proliferation treaty, (b) the CWC as a treaty for development, or (c) the CWC as a treaty to
facilitate trade with chemicals and technology.
After the CWC was concluded the debate continued in the PrepCom on Article XI.
190 Effective Implementation of the CWC

Controversy on this issue is related, on one hand, to the position of some states that Article XI
should ensure the ‘free and unhampered transfer of chemicals’ for peaceful purposes and, on
the other hand, to the position that future CWC members are bound under Article I not to
‘assist...anyone to engage in any activity prohibited to a State Party’ and on the right of states
to determine their own national export policies. However, more recently the debate turned to a
more positive approach by considering the development of an Article XI database to facilitate
the exchange of information related to economic and technological development in the field of
chemistry.1
It may be useful to recapitulate briefly how the CWC deals with the transfer or trade of
chemicals. In the CWC four articles address this area, directly or indirectly:

1. Article I, paragraph 1(a): each State Party undertakes never to ‘transfer, directly or
indirectly, chemical weapons to anyone’; and paragraph 1(d): each State Party shall not ‘assist,
encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party
under [the CWC]’.
2. Article VI, paragraph 2: each State Party ‘must adopt 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 under [the CWC]’.
3. Article VII, paragraph 1(c): each State Party shall ‘extend its penal legislation enacted
under subparagraph (a) to any activity prohibited to a State Party under this Convention
undertaken anywhere by natural persons’.
4. Article XI, paragraph 2(e): each State Party is required to ‘undertake to review their
existing national regulations in the field of trade in chemicals in order to render them consistent
with the object and purpose of the [CWC]’.
5. Article XI, paragraph 2(d): each State Party shall not use this Convention to apply
measures ‘other than those provided for, or permitted, under this Convention...’

III. Transfer of chemicals under the CWC

The detailed obligations for the transfer of scheduled chemicals are presented in the Parts VI,
VII and VIII of the Verification Annex. The general principle applied is: Any transfer of
scheduled toxic chemicals or their precursors among States Parties must be for purposes not
prohibited under the CWC. The specific principles for the three schedules are described in the
following discussion.
Schedule 1
For Schedule 1 chemicals, only transfer for non-prohibited purposes to States Parties is
allowed; transfer to non-States Parties will generally be prohibited. If transfer takes place, the
following information is required: (a) the chemical name, structural formula, and Chemical
Abstract Service registry number; (b) the quantity acquired from other states or transferred to
other states; and (c) for each transfer, the quantity, recipient and purpose. The Technical
Secretariat must receive a notice at least 30 days in advance of any such transfer. Annual
declarations have to be provided on transfers of Schedule 1 chemicals. Re-transfer to another
state is not allowed.

1 This was based on the PrepCom’s request for a PTS study on that issue (see: Note by the Executive Secretary,
‘Request for data on types of information to be contained in a possible database to be established under Article XI’, PC-
IX/B/1, 13 Oct. 1994) and a paper submitted by Australia (see: ‘Non-paper: Information for Article XI Database’, 6
Nov. 1994). For more information see also: Note by the Executive Secretary, ‘An end-user survey of information
requirements to facilitate information exchange in relation to Article XI’, PC-XI/B/3, 13 Apr. 1995.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 191

For transfer of chemicals on schedules 2 and 3, the CWC takes a twofold approach requiring:
(a) specific declarations on transfer (export) to states in general; and (b) specific declarations on
transfer (export) to states not parties to the CWC.
Schedule 2
For Schedule 2 chemicals above the declaration threshold,1 information (aggregate national
data) has to be submitted in the annual declarations on the total amount exported in the previous
calendar year. In addition a quantitative specification of export for each country has to be given.
For a plant site, besides the annual declaration on previous year exports, the anticipated (for the
following calendar year) exports have to be submitted, including a specification of the states to
which export was/will be made.
For Schedule 2, if export is to a state which is not a party to the CWC, export can only occur
for three years after entry into force of the CWC; thereafter transfer will be permitted only to
States Parties to the CWC. In this interim period transfer to non-States Parties will be allowed if
end-use certificates are presented. The certificate has to include: (a) a statement by the recipient
state that the chemical will only be used for permitted purposes, (b) assurance that the chemical
will not be re-transferred, (c) the types and quantities of the chemical, (d) its end-use(s), and (e)
the name(s) and address(es) of the end-user(s).
Import or export of Schedule 2 chemicals are not subject to quantity limitation.
Schedule 3
For Schedule 3 chemicals above the declaration threshold,2 information has to be submitted in
the annual declarations for the previous calendar year on aggregate national data for export of
each chemical and specification of export for each country. There are no quantity limitations on
the transfer of Schedule 3 chemicals.
For Schedule 3 an interim period of five years is built into the CWC, in which transfers to
non States Parties are possible. The existing regulations for the transfer of chemicals have to be
reviewed after these 5 years with consideration given to whether new measures have to be
applied. In contrast to the prohibition of transfer of Schedule 2 chemicals to non States Parties
after 3 years, the CWC only requires concideration of the need for ‘other measures’ on
Schedule 3 transfer. In the interim period, transfer to non States Parties will be allowed if end-
use certificates are presented. The certificate shall include: (a) statement by the recipient state
that the chemical will only be used for purposes not prohibited under the CWC, (b) insurance
that the chemical will not be re-transferred, (c) types and quantities of the chemical, (d) end-
use(s); and (e) name(s) and address(es) of the end-user(s).

IV. Obligations in the process of national implementation

There are two obligations related to the transfer of schedules 2 and 3 chemicals for an individual
State Party under the CWC: (a) if transfer takes place to a State Party it has to be assured that
the required information (see above) is available; (b) if transfer takes place to a state not party to
the CWC, end-use certificates must be obtained.
If a State Party can confirm that the required information will be obtained under its existing
transfer regulations (export regulations), the State Party may retain its transfer regulations for
Schedule 2 and 3 chemicals for at least 3–5 years. It will not be forced to change its existing
regulations in order to meet the reporting obligations under the CWC. After 3 years the transfer

1 The thresholds are: Schedule 2A* = 1 kilogram, Schedule 2A = 100 kilograms, Schedule 2B = 1 tonne.
2 The threshold for Schedule 3 is 30 tonnes.
192 Effective Implementation of the CWC

of chemicals under Schedule 2 to non States Parties will no longer be allowed. What will
happen to the transfer regulations regarding Schedule 3 chemicals after 5 years is still an open
question.
Article XI, paragraph 2(c), must be recalled in any discussion of export controls. It
recommends that States Parties shall:
Not maintain among themselves any restrictions, including those in any international agree-
ments, incompatible with the obligations undertaken under this Convention, which would restrict
or impede trade and the development and promotion of scientific and technological knowledge in
the field of chemistry for industrial, agricultural, research, medical, pharmaceutical or other
peaceful purposes.

Although this obligation is general, an individual State Party has to consider it when deciding
the form its national trade and transfer control system should take. The approach is twofold:
States Parties undertake to ‘review their existing national regulations’ with the purpose ’to
render them consistent with the object and purpose of this Convention’, and also pledge to
implement the Convention in a manner which does not hamper the ‘economic and technological
development’ of other States Parties.
A State Party must establish an export control system which allows for both strengthening
and relaxing controls, depending on the country (State Party or non State Party to the CWC) to
which the transfer is being made, and the export control measures that already exist. The
effectiveness of any control-system will naturally depend on the ability of the government of a
State Party to ensure that industry and customs—through which any chemical product will have
to pass—comply with new and existing legislation.
A number of countries have already established export control measures, and the wording of
the CWC—‘undertake to review their existing national regulations in the field of trade in
chemicals’—provides additional guidance. Thus, the following tools for a system of export
controls might be considered: (a) export licences, (b) end-use statements, (c) re-export
certificates, (d) post-shipment checks, (e) import controls, (f) in-transit shipment controls, and
(g) control of technology transfer.
Existing legislation (such as the penal code of a country, customs act, international trade law,
and the like) may be adequate, may have to be amended or alternative acts or legislation may
need to be created. In most countries, national law supersedes international law, therefore
national legislation has to be approved to incorporate an international treaty such as the CWC.
Then the provisions of the treaty can be applied equally as other national legislation.
Already as States Parties are preparing implementation legislation there is a need to consider
the requirements of the CWC for the control of exports of chemicals. Countries will have to
review and adjust their existing regulations to meet their obligations under the CWC. They will
also have to keep in mind that after 3 or 5 years the need may arise to address new requirements
related to the transfer of Schedule 2 and 3 chemicals to States Parties and non States Parties.
Lastly, it should be recalled that a State Party under the CWC always has the right to export
chemicals if this is done in accordance with the obligations assumed under the CWC.

V. International co-operation and Article XI

Some of the signatory nations and their chemical manufacturers may not have had extensive
experience in reporting of information or of being subject to international inspections. There
will be initial difficulties for them in fulfilling their obligations, including the control of the
transfer of chemicals, under the Convention.
Questions of co-operation and possible harmonization in the area of export control measures
will be of importance since major chemical enterprises often have facilities located on the
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 193

territory of more than one State Party. Certain rules and procedures for inventorying on the
national level may create concern in some States Parties about competition and confidentiality
within chemical industry.
Here the regional chemical industry associations could be of assistance in addressing such
concerns. Other areas for active involvement by chemical industry associations could include:
(a) providing general assistance and support, (b) supporting and providing information to
individual countries in their legislative activities related to export regulations, (c) exchange of
experience and expertise, (d) aiding individual countries in their efforts to set up a National
Authority and the necessary data reporting system, and (e) assisting the training of specialists
for the National Authority data auditing.
The CWC could serve as a vehicle to review and improve existing trade regulations dealing
with chemicals and equipment and also help to strengthen efforts to harmonize regulations
related to the export of dual-use goods. A common policy for the harmonization of export
control regulations, as for example in the EC, is currently receiving increasing attention and will
gain additional momentum, when the CWC enters into force. An active role can clearly be taken
in the implementation process and the co-ordination of common undertakings by countries
which may be organized in associations, national and regional chemical manufacturers associa-
tions (such as the Confédération Européenne des fédérations d’industrie chimique—CEFIC—in
Europe, the CMA in the USA, the CCPA in Canada and the Japanese Chemical Trade
Association) or groups of countries in a region, such as those in South America.
194 Effective Implementation of the CWC

Annex I. Transfer of chemicals under the CWC

Schedule 1
limitation: < 1 tonne
transfer only between States Parties
declaration of transfer with information on:
(a) the chemical name, structural formula, and Chemical Abstract Service registry number;
(b) the quantity acquired from other states or transferred to other states; and
(c) for each transfer the quantity, recipient and purpose shall be included.
Schedule 2
limitation for declaration: >1 kg (for BZ) or >100 kg for chemicals from Schedule 2, part A; >1
tonne for chemicals from Schedule 2, part B;
during first three years after the CWC enters into force:
transfer to both States Parties and non-States Parties is allowed;
for transfer to non-States Parties during first three years end-use certificate is required which shall
include statement:
(a) by the recipient state that the chemical will only be used for purposes not prohibited;
(b) that the chemical will not be re-transferred;
(c) of types and quantities of the chemical;
(d) of end-use(s); and
(e) of the name(s) and address(es) of the end-user(s).
for transfer to States Parties the recipient State Party has to report on imported chemicals and the
exporting State Party has to report on the export in both the annual declaration on anticipated
activities and the initial declaration about the previous three calendar years.
after three years transfer is allowed only to States Parties.
Schedule 3
limitation for declaration: >30 tonnes;
during first five years after the CWC enters into force:
transfer to both States Parties and non-States Parties is allowed;
for transfer to non-States Parties during first five years end-use certificate is required which shall
include statement:
(a) by the recipient state that the chemical will only be used for purposes not prohibited;
(b) that the chemical will not be re-transferred;
(c) of types and quantities of the chemical;
(d) of end-use(s); and
(e) of the name(s) and address(es) of the end-user(s).
no possibility to trace the transfer to States Parties; there is an obligation that the producing State
Party shall give information about the production purposes, which might contain transfer
information;
after five years review regulations and consider the establishment of other measures.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 195

The Provisions of Article X: Some Comments

THOMAS STOCK, RONALD G. SUTHERLAND, THOMAS KURZIDEM,

PATRICIA RADLER AND YORK VON LERSNER

I. Introduction
The success of the Chemical Weapons Convention (CWC) will depend on both international
and national implementation. The national implementation of the CWC is entirely the respons-
ibility of the individual state. Under Article VII of the CWC (National Implementation Mea-
sures), individual States Parties are required to take measures to adhere to the Convention. It
may be useful to recall that national implementation and the provision to submit all necessary
information via declarations are prerequisites for effective international verification. Article VII
is quite general in its wording and leaves it entirely to individual States Parties as to how they
will implement the provisions of the Convention and comply with their obligations.
Under the CWC all States Parties will have equal status as regards non-possession of
chemical weapons (CW), as required by Article I. Nevertheless the practical situation,
especially in the first 10 to 15 years, will differ owing to the fact that the CW possessor nations
are obliged to destroy their stockpiles during that period. This means that States Parties will
remain divided into two groups: (a) past possessors who continue to possess stockpiles; and
(b) non-possessors. In addition, it must be kept in mind that universal adherence to the CWC is
a long-term goal; not all states (including some suspected possessors) will join the Convention
from the beginning.
In addition, small states, that lack means of protection against CW could be the target for a
chemical attack, especially by a non State Party. In such a case, even limited use of CW can
have significant consequences, especially if protective equipment and protective measures are
not available. Also, it may suffice if an adversary, can make it credible that it possesses CW
and might be willing to use it.
The CWC has to provide a security environment that should enable States Parties to feel
confident that all other States Parties are in compliance with their obligations and that there will
be assistance by other States Parties or the Organisation for the Prohibition of Chemical
Weapons (OPCW) in case an individual State Party feels threatened by use of CW by a non
State Party.
This paper analyses the provisions and obligations of Article X, Assistance and Protection
against Chemical Weapons, with respect to the national implementation undertakings of the
States Parties. The full implementation of this article will be of major importance for the
undiminished security of States Parties after the Convention enters into force.

II. Assistance and Protection against CW under Article X

The wording of Article X of the CWC makes clear that the negotiators left the task of working
out the optimum procedures required for providing assistance to the PrepCom. Under Article X
of the CWC each State Party has the right to request and receive assistance in the following
situations:

1. If chemical weapons have been used against it.

2. If riot control agents have been used against it as a method of warfare.
3. If it is threatened by the actions or activities of any State that are prohibited under Article I.
196 Effective Implementation of the CWC

The CWC defines assistance as: ‘the co-ordination and delivery to States Parties of protection
against chemical weapons’.
Three types of assistance are defined: (a) use of CW, (b) threat of CW use, and (c) the results
of an on-site investigation after an alleged use of CW. The types of assistance are: emergency,
supplementary and humanitarian. Means of assistance are defined inter alia as detection
equipment, alarm systems, protective equipment, medical antidotes and treatments, decontamin-
ation equipment and decontaminants and advice on protective measures. The CWC outlines the
rules of procedure for requesting assistance and the ways in which the OPCW should respond.
The forms the three types of assistance might take are discussed below.
Emergency assistance
Assistance can be provided by the OPCW and individual States Parties on the basis of a request
and before investigation has been completed. The means of assistance in such a case might
include: protective equipment, decontamination equipment, decontaminants, medical supplies
and support, antidotes, etc.
Supplementary assistance
Assistance can be provided by the OPCW and individual States Parties after investigation has
been completed and the Executive Council has taken a decision on further actions. The means
of assistance might include: medical supplies, trained personnel, decontamination equipment
and decontaminants, medical treatment, and the like.
Humanitarian assistance
Assistance can be provided by States Parties in the event of the threat of chemical attack. The
means of assistance might include: detection equipment, alarm systems, protective gear,
medical supplies, antidotes, and so on.
Article X outlines the obligation of the States Parties to provide assistance through the OPCW
in one or more of the following ways:
(a) contributing to the Voluntary Fund (VF) for Assistance, which will be established at the
first Conference of the States Parties;
(b) concluding an agreement concerning the procurement of means of assistance with the
OPCW (if possible not later than 180 days after entry into force); and
(c) declaring (not later than 180 days after entry into force) the kind of assistance it could
provide in the event of a request by the OPCW.
Request for assistance
The CWC states that a request for assistance should be submitted to the Director-General who
will bring it immediately to the attention of the Executive Council (EC) and all States Parties.
States Parties should be in a position to provide voluntarily emergency assistance within 12
hours of the receipt of such a request. After the Director-General has initiated an investigation to
establish the facts and to provide the ground for further actions, the EC will meet and decide if
supplementary assistance should be provided.
In cases where the investigation is not finished, but it is obvious that CW have been used, the
Director-General can provide emergency assistance by using the Voluntary Fund. Hereby
protective equipment from the OPCW’s stockpile can be dispatched or equipment from other
donor States Parties can be used.

III. What has been achieved under Article X?

The PrepCom established an expert group on Technical Cooperation and Assistance. The major
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 197

achievements of the expert group are discussed below.

Procurement of assistance from States Parties
A ‘Model Bilateral Agreement between the OPCW and a State Party concerning the
procurement of Assistance, as requested under Article V, subparagraph 7(b), has been worked
out. 1 This Model Agreement will serve as the legal framework for any procurement of
assistance by the OPCW provided by an individual State Party. Its annexes contain forms
which list items, equipment and personnel to be provided and which are covered by the
agreement.
After decision was taken by the PrepCom that the OPCW should establish its own stockpile
of protective equipment, the Expert Group compiled a list of protective equipment which the
OPCW could use in accordance with the provisions of Article X and which might be stored at
the OPCW storage facility. This equipment could be used for: (a) emergency assistance, or (b)
investigations pursuant to Article X, paragraph 9.
Information on national programmes
Article X, subparagraph 4, notes that each State Party shall submit: ‘For purposes of increasing
the transparency of national programmes related to protective purposes...annually to the
Technical Secretariat information on its programme...’.
There is an understanding that the submission of some of the information is mandatory, while
supplying other information will be voluntary. However, there is still uncertainty about where
the borderline will be drawn. The Expert Group has discussed lists of categories of information
to be provided by States Parties on national programmes related to protective purposes.2
Information may include: (a) information on the existence of a national programme, (b)
information on the general elements of the programme, (c) information on the training of
specialists in CW protection, (d) information on protection units. As well, there is an under-
standing that additional voluntary information could serve as a kind of confidence-building
measure (CBM).3
There is a suggestion that the information required under Article X, paragraph 4, should be
provided by each State Party after the end of the calendar year, to which the information refers
(maybe not later than 90 days).4 Final agreement has not been reached on the extent of the
annual provision of information to be provided by a State Party to the OPCW.5
Information on assistance
Article X, subparagraph 7(c), requires States Parties to provide assistance in response to an
appeal by the OPCW. The Expert Group has developed illustrative lists of ‘Categories of
Information on Assistance that could be made available by States Parties’. The purpose of these
lists is to enable the Technical Secretariat to determine what relevant assistance might be
available and where such assistance might be obtained whenever assistance is requested. These
lists contain information on: (a) equipment, (b) medical assistance, (c) personnel, (d) training,
and (e) assistance and protection.
Establishment of the Voluntary Fund
As outlined under Article X, subparagraph 7(a), States Parties must undertake to provide
assistance through the Organisation. One possible measure is: ‘To contribute to the Voluntary

1 Preparatory Commission for the Organisation for the Prohibition of Chemical Weapons (PrepCom OPCW)
document PC-VII/B/WP.6, 20 May 1994.
2 PrepCom OPCW document PC-IX/B/Wp.4, 9 Nov. 1994.
3 PrepCom OPCW document PC-VI/B/WP.8, 22 Feb. 1994.
4 PrepCom OPCW document PC-VI/B/WP.8, 22 Feb. 1994.
5 PrepCom OPCW document PC-XI/B/WP.3, 24 May 1995.
198 Effective Implementation of the CWC

Fund for Assistance to be established by the Conference at its first session’.

In 1993 agreement was already reached in The PrepCom that: ‘The Voluntary Fund should
comprise monetary contributions from States Parties as well as from NGOs [non-governmental
organizations], institutions, private parties or individuals. Any condition on the use of these
funds must be consistent with the aims and purpose of the Convention and approved by the
Executive Council’.
The Expert Group has also developed guidelines for Regulations for the Voluntary Fund for
Assistance.1 The Voluntary Fund should be used for the creation, maintenance and periodic
replenishment of the stockpile for emergency assistance and to assure continued availability of
means of assistance with the OPCW.2
OPCW data bank on protection against CW
Article X, paragraph 5 requires that: ‘The Technical Secretariat shall establish, not later than
180 days after entry into force of this Convention and maintain, for the use of any requesting
State Party, a data bank containing freely available information concerning various means of
protection against chemical weapons as well as such information which may be provided by
States Parties’.
Based upon recommendations from the Expert Group, a request for documents for this
OPCW data bank has been sent to all signatory states.3 The data bank, which will be indexed
by a data base accessible by States Parties, is to contain general information on chemistry,
physics, medicine, electronics and technologies as well as special subject information on
different means of protection, detection, contamination, decontamination, medical prophylaxis
and chemical munitions disposal. This information should be made available to the PTS prior to
entry into force of the Convention.
This data base could also be consulted in cases of civilian chemical catastrophes such as
major accidental releases of toxic chemicals.

IV. Obligations of States Parties under Article X

Under Article VII—National Implementation Measures—a State Party is required ‘to implement
its obligations under this Convention’ and ‘undertakes to cooperate with the Organisation in the
exercise of all its functions and in particular to provide assistance to the Technical Secretariat’.
In addition, as outlined under paragraph 2, each State Party must be able to co-operate with
other States Parties in the field of assistance and protection against CW and ‘...shall cooperate
with other States Parties...to facilitate the implementation of the obligations under paragraph 1
[Each State Party shall...adopt the necessary measures to implement its obligations under this
Convention...].
Taking the context of Article X into account, a State Party: (a) has to provide assistance to the
OPCW; (b) may provide assistance to other States Parties through the OPCW; and (c) can
provide directly assistance to another State Party.
In preparing for national implementation, States Parties have to consider how they can fulfil
their obligations related to assistance under Article X. Each State Party has to:

(a) consider any possible contribution which it can make to the OPCW stockpile of protective
equipment;
(b) submit annually information on national programmes related to protective purposes;

1 PrepCom OPCW document PC-V/B/WP.16, 3 Dec. 1993.

2 PrepCom OPCW document PC-V/B/WP.16, Appendix 3; 3 Dec. 1993.
3 ‘Note by the Executive Secretary: Request for documents for the OPCW data bank on protection against chemical
weapons’, PrepCom OPCW document PC-VI/B/3, 28 Jan. 1994.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 199

(c) consider a monetary contribution to the Voluntary Fund of the OPCW;

(d) consider the information which it might be able to provide under Article X, subparagraph
7 (b) (procurement of assistance upon demand) and 7 (c) (in response to an appeal by the
OPCW); and
(e) consider any voluntary contribution to the OPCW data bank on protection against CW;
(f) consider any possibilities to contribute to the data bank which contains information
concerning means of protection.

There is a clear understanding that Article X calls for two different types of contributions: (a)
mandatory, and (b) voluntary. A State Party with national programmes related to protective
purposes will be obliged to provide annual information on such programmes. Greater openness
and more transparency will serve to increase confidence among States Parties in the early days
of the CWC.
Under paragraph 7, each State Party has the freedom to choose one or more forms for its
contribution to the means of assistance and protection against CW that will be established under
the supervision of the OPCW. These means are to be accessible to each State Party on request
depending on the use or threat of use of CW, as outlined under Article X, paragraph 8. At the
beginning of the life of the CWC and in order to contribute to confidence building, it would be
helpful if each State Party made voluntary contributions based on Article X of the OPCW.
200 Effective Implementation of the CWC

Liability of the Future OPCW

YORK VON LERSNER, PATRICIA RADLER, THOMAS KURZIDEM,

THOMAS STOCK AND RONALD G. SUTHERLAND

I. Introduction
The issue of liability of the future OPCW has so far been neglected not only during the
negotiation process of the CWC in Geneva but also within the work of the PrepCom of the
OPCW. During the 10th and 11th Plenary of the PrepCom for the first time one aspect of the
future Organization’s liability was addressed - compensation for breaches of confidentiality.1
The fact that the problem of liability has not been touched during most of the CWC
implementation process is in line with the development of many other international
organizations, when the question of liability of the Organization was not on the agenda either.
However, the question of liability is not a marginal problem, which can be dealt with as soon as
the issue arises. It is very important for the standing of the international organization within any
legal relationship, concerning international law or national law.2 The latter context is of major
importance for the future OPCW. One might only think of the costs involved in contracts for
the buying of equipment of inspectors, which were not concluded under international law.
The circumstances in which the organisation could be held liable are as follows3:
1) Liability for contractual obligations
2) Liability for tort-obligations other than breaches of confidentiality
3) Liability for tort-obligations concerning breaches of confidentiality

Two question have to be answered to pave the way for a suitable liability regime of the future
OPCW: first, whether the Organization is liable to any claimants at all and second, whether its
members states are liable for obligations of the Organization to claimants or to the Organization
as well.
There are two other points regarding the question of liability that will not be addressed in this
paper. First the Organization is granted immunity in the national legal systems. This, however,
only means that no action can be brought against the Organization in court; it does not prevent
the Organization to be substantially liable for its obligations.4 The second point is the liability of
an organization vis-à-vis Non Parties. There is an academic debate5 on this issue, but it is very
unlikely that the problem will arise in the context of the OPCW and, thus, it can be neglected in

1Statement of the Asian Group PC- X/18 paragraph 4 (e); Report of the Commission, PC-XI/17 paragraph 7.10
(page 6) and Annex 2, IV no.3 (page 22).
2Pernice, I., Die Haftung internationaler Organisationen und ihrer Mitarbeiter, 26 Archiv des Völkerrecht (AVR)
(1988), pp. 406 et seq., at p. 407.
3See also PC-X/B/WP.3 paragraph 22.
4With the IAEA as an example see Rockwood, L., Responsibility of the international organization and of its civil
servants, paper presented at the Workshop on The Convention on the Prohibition and Elimination of Chemical
Weapons, Hague Academy of International Law, at p. 4 , forthcoming in Recuil de Cours: Convention on the
Prohibition and Elimination of Chemical Weapons: A Breakthrough in Multilateral Disarmament.; Müller, W., Trau
schau wem! Oder: Von der zivilrechtlichen Verantwortlichkeit der Mitgliedstaaten Internationler Organisationen, Neue
Juristische Wochenschrift (NJW) 1991, pp. 2175 et seq., at p. 2177.
5 For the different opinions see Mann, F.A., Die juristische Person des Völkerrechts, 152 Zeitschrift für
Handelsrecht (1988), pp. 303 etleat p. 307; Hahn, H.J., Euratom: The Conception of an International Personality, 71
Harvard Law Review (1958), pp. 1001 et seq., at p. 1048; Meng, W., Internationale Organisationen im
völkerrechtlichen Delikt, 45 ZaöRV (1985), pp. 324 et seq.; Mosler, H., Die Erweiterung des Kreises der
Völkerrechtssubjekte, 22 ZaöRV (1962), pp. 1 et seq., at p. 32; Frowein, J.A., Recognition, EPIL <10>, at p. 346;
Collier, FS Lipstein, 1980, 21.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 201

this paper.

II. Legal Personality of the OPCW

The liability of an international organization depends on the fact whether or not the organization
possesses legal personality and thus, must be considered a subject of international law or the
respective national legal system.1 The latter point is relevant for, interalia, contracts concluded
with enterprises which are not subjects of international law. These contracts may be governed
by any national legal system and the Organization can only be held liable if it has legal
personality under the respective legal system.2
Concerning the legal personality of the Organization under international law the mere wording
of the CWC is not the decisive factor, but the whole context of the CWC, the nature, purpose
and function of the Organization and the intention of states, whether the Organization should
exercise and enjoy rights and duties, based on the possession of international personality and
the capacity to operate on the international plane will be taken into account. 3 Although there is
no provision in the CWC stating that the future OPCW possesses international legal personality
- Art. VIII paragraph 48 has not been considered to be sufficient to establish the Organization’s
international legal personality4- it is obvious that the OPCW can only exercise its rights and
functions, if it possesses international legal personality and is considered as a subject of
international law.5 The conclusion of facility agreements between the OPCW and Member
States, which will be treaties under international law, may serve as an example so far.
Regarding the aspect of legal personality under the legal systems of States Parties, Art. VIII,
paragraph 48 of the Convention serves to prove that the OPCW will possess legal personality in
the respective legal systems.6
Since it cannot be disputed that the OPCW will possess legal personality, it is well
established that international organization are responsible and liable for the acts of its agents.7

1Brownlie, I., Principles of International Law, 4th ed. 1990, at p. 701 states: The correlative of a legal personality
and a capacity to present international claims is responsibility.
2 Mann, F.A., Die juristische Person des Völkerrechts, 152 Zeitschrift für Handlesrecht (1988), pp. 303 et seq., at p.
307; Ebenroth, C.T., Münchner Kommentar zum Bürgerlichen Gesetzbuch, Vol. VII, 2nd ed., nach Art. 10, no. 560.
3 Mann, F.A., Die juristische Person des Völkerrechts, 152 Zeitschrift für Handlesrecht (1988), pp. 303 et seq., at p.
306; see also Advisory Opinion of the ICJ concerning Reparations for Injuries suffered in the Service of the United
Nations, ICJ Reports 1949, at p. 179.
4 Mann, F.A., Die juristische Person des Völkerrechts, 152 Zeitschrift für Handlesrecht (1988), pp. 303 et seq., at p.
306.
5See Seidl-Hohenveldern, I., Der Rückgriff auf die Mitgliedstaaten in Internationalen Organisationen, in Völkerrecht
als Rechtsordnung - Internationaler Gerichtshof - Menschenrechte Festschrift für Herman Mosler, pp. 881 et seq., at
p.885 et seq.; Mann, F.A., Die juristische Person des Völkerrechts, 152 Zeitschrift für Handlesrecht (1988), pp. 303 et
seq., at p. 307 states that as a rule one can assume that states, founding an international organisation, will also grant
the international organisation legal personality in international law, although the constitutional documents do not
include any provision in that respective; see also Hoffmann, G., Der Durchgriff auf die Mitgliedstaaten internationaler
Organisationen für deren Schulden, Neue Juristische Wochenschrift (NJW) 1988, pp. 585 et seq., at p. 585 with further
references in footnot 3; and Hahn, H.J., Euratom: The Conception of an International Personality, 71 Harvard Law
Review (1958), pp. 1001 et seq., at p. 1048.
6See to that Ebenroth, C.T./ Fuhrmann, L., Die zivilrechtliche Haftung internationaler Organisationen und ihrer
Mitgliedstaaten, Juristische Zeitung (JZ) 1989, pp. 221 et seq. at p. 215; Hoffmann, G., Der Durchgriff auf die
Mitgliedstaaten internationaler Organisationen für deren Schulden, Neue Juristische Wochenschrift (NJW) 1988, pp.
585 et seq.
7Bothe, M., Obligations and Protection of Individuals, paper presented at the Workshop on The Convention on the
Prohibition and Elimination of Chemical Weapons, Hague Academy of International Law, at p. 8 , forthcoming in
Recuil de Cours: Convention on the Prohibition and Elimination of Chemical Weapons: A Breakthrough in Multilateral
Disarmament.
1Ginther, K., International Organisations, Responsibility, in EPIL <5> at p. 162; see also Rockwood, L.,
Responsibility of International Organisations and its civil servants, paper presented at the Workshop on The
Convention on the Prohibition and Elimination of Chemical Weapons, Hague Academy of International Law, at p. 1,
forthcoming in Recuil de Cours: Convention on the Prohibition and Elimination of Chemical Weapons: A
202 Effective Implementation of the CWC

This applies to international law1 as well as to national law2. Thus it can be concluded that the
future OPCW will be liable for acts of its agents.
In the following paragraph it will be briefly examined in which situations the issue of liability
will be relevant for the future OPCW. The Organization is not liable for any breach of
confidentiality by a staff member of the TS3. Thus, the issue will not occur in such cases.
Regarding the liability for contractual obligations it might be well the case, that the Organization
will waive its immunity for being sued before national courts. This is due to the fact that
contracts with private enterprises are concluded under the respective national law and that the
Organization itself brings action against the enterprise which are related to the same contract.
These claims can then be settled by the national court as well and the Organization can pursue
that the judgment will be executed. Furthermore by waiving its immunity for being sued in
national courts, the Organization does not waive its immunity for execution of private law
judgments. Thus, any judgment passed by a national court cannot be executed against the
OPCW. A last reason for waiving its immunity might be, that the Organization by doing so
wants to uphold its reliability as a trading partner.
The issue of liability will therefore mainly be relevant for tort- obligations other than breaches
of confidentiality.

III. Liability of Member States for the OPCW

The remaining question is whether the Member States of the Organization are also liable for acts
of the Organization. This is of great importance for any claimant as well as for the Organization.
If states are liable claimants can sue the State Parties and thus, it is more likely for them to
receive the full amount of their claim and not merely a proportion as in the case of liquidation of
the Organization. Vice versa the standing of the Organization in all legal relations will improve
if the individual, who does business with the Organization, can be assured that the member
states are also responsible for the financial obligations of the Organization.
In this regard many theories have been developed. Some of them stating that an organization
alone must be held liable for its acts,4 while others state different shades of members states’

Breakthrough in Multilateral Disarmament; Kadelbach, S., Staatshaftung für Embargoschäden, Juristische Zeitung (JZ)
1993, S. 1134 et seq.
2 Ebenroth, C.T./ Fuhrmann, L., Die zivilrechtliche Haftung internationaler Organisationen und ihrer
Mitgliedstaaten, Juristische Zeitung (JZ) 1989, pp. 221 et seq., at p. 220; Hoffmann, G., Der Durchgriff auf die
Mitgliedstaaten internationaler Organisationen für deren Schulden, Neue Juristische Wochenschrift (NJW) 1988, pp.
585 et seq., at p. 586.
3Paragraph 22 of the Confidentiality Annex.
4So Pernice, I., Die Haftung internationaler Organisationen und ihrer Mitarbeiter, 26 Archiv des Völkerrecht (AVR)
(1988), pp. 406 et seq., at p.419 and 420; Seidl- Hohenveldern, I., Die völkerrechtliche Haftung für Handlungen
Internationaler Organisationen im Verhältnis zu Nichtmitgliedstaaten, 11 ÖZöR (1961), pp. 497 et seq., at p. 505 et
seq., Eisemann, P.M., Crise du Conseil International de l'Étain et Insolvabilité d'une Organisation
Intergouvernementale, 31 AFDI (1985), pp. 730, at p. 745; Herdegen, M., Bemerkungen zur Zwangsliquidation und zum
Haftungsdurchgriff bei Internationalen Organisationen, 47 ZaöRV (1987), pp. 537 et seq., at p. 555; with respect to
the contractual obligations of the EC, see Conze, A., Die völkerrechtliche Haftung der Europäischen Gemeinschaft,
1987, at p. 70; with respect to tort-obligations of an international organisation v. Münch, I., Das völkerrechtliche
Delikt, 1963 at p. 268.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 203

liability for obligations of the Organization1 2. However, no general rules on liability exist in
international law so far.3 There is no codification addressing the issue in a general way4, and
there are no customary international law either. The few examples existing at present are the
International Tin Council Case,5 the Eurochemie Case and the Westland Helicopters Case6
cannot serve as precedents for various reasons and all have been settled in different ways.
Further, a survey of the constitutional documents of international organizations reveals that no
coherent practice exists addressing the problem of member states’ liability for acts of the
Organization. Some of these documents contain specific clauses for the dissolution of the
Organization, some include provisions limiting the liability of the Organization, some provide
for the liability of member states but most of them do not refer to the question of liability at all.7
Thus, to decide whether or not member states are liable for acts of an international
organization, it is necessary to analyze the constitutional documents of the Organization8 as well
as all circumstances of its establishment and its assigned tasks.9 Further, the intention of
member states concerning their own liability for the Organization have to be taken into
account.10 But before turning to the interpretation of the CWC concerning the liability of OPCW

1Reuter, P., Sur quelques limites du Droit des Organisations Internationales, Festschrift für Rudolf Bindschedler, Bern
1980, pp. 491 et seq., at p. 505 et seq.; Seyerstedt, F., Objective International Personality of Intergovermental
Organisations, 1963, at p.97, Meng, W., Internationale Organisationen im völkerrechtlichen Delikt, 45 ZaöRV
(1985), pp. 324 et seq., at p. 338; Bothe, M. Die Stellung der Europäischen Gemeinschaften im Völkerrecht, 37 ZaöRV
(1977), pp. 122 et seq., at p. 128; Bernhardt, R., Die Europäischen Gemeinschaften als neuer Rechtsträger im Geflecht
der traditionellen zwischenstaatlichen Beziehungen, 18 Europarecht (EUR) (1983), pp. 199 et seq., at p. 212;
Schemers, H., Liability of International Organisations, 1 Leiden Journal of International Law (1988), pp. 1 er seq., at
p. 9.
2In this respect it is debated whether member states shall be jointly liable with the organisation towards the claimant
or shall only be liable towards the organisation for compensation of claims brought against the organisation or
whether member states shall be subsidiary liable for the organisation's obligation. However, this paper discusses only
the question, whether member states are liable or not and leaves the question in which manner member states are liable
aside.
3In his doctoral thesis Die Haftung der Mitgliedstaaten für Internationale Organisationen, Berlin 1993, M. Hartwig
analysed the various factors of a possible liability of member staes in detail, such as control over the organisation,
financial obligations of member states for the organisation etc.; his conclusion that so far no body of law ruling the
question of liability exists is at p. 333; see also Amerasinghe, C.F., Liability to Third Parties of Member States of
International Organisations: Practice, Principle and Judicial Precedent, 85 AJIL (1991), pp. 259 et seq. with further
references; Cahier, The Strengths and Weaknesses of International Arbitration Involving a State as a Party, in
Contemporary Problems in International Arbitration, J. Lew (ed.), 1987, at p. 244; see also the examination of
Pernice, I., Die Haftung internationaler Organisationen und ihrer Mitarbeiter, 26 Archiv des Völkerrecht (AVR) (1988),
pp. 406 et seq., at pp. 420-428.
4The Vienna Convention on the Law of Treaties between States and International Organisations and among
International Organisations has not entered into force so far. To the Convention see Bothe, M., Die Wiener
Konvention über das Recht der Verträge zwischen Staaten und Internationalen Organisationen und zwischen
Internationalen Organisationen, Neue Juristische Wochenschrift (NJW) 1991, pp. 2169 et seq.
5Judgement of the House of Lords of 26.10.1989, 3 [1989] All E R at pp. 523 et seq.; Judgement of the Court of
Appeal, 3 [1988] All E R, 257 et seq.; For analysis of the case see Mallory, I., Conduct unbecoming: The collapse of
the International Tin Council, AM.U.J Int'l. L.&Pol'y 1990, pp. 835 et seq.; Thomson, D., The International Tin
Council Litigation, 22 Journal of World Trade (1988), pp.103 et seq.; Hartwig, M., Die Haftung der Mitgliedstaaten für
Internationale Organisationen, Berlin 1993, pp.307 et. seq.
6Interim Award of the International Chamber of Commerce Court of Arbitration, Westland Helicopters Limited v.
Arab Organisation for Industrilazation et al., 23 ILM (1984), pp. 1071 et seq.
7See Schemers, H., Liability of International Organisations, 1 Leiden Journal of International Law (1988), at p. 8
with examples; see also Pernice, I., Die Haftung internationaler Organisationen und ihrer Mitarbeiter, 26 Archiv des
Völkerrecht (AVR) (1988), pp. 406 et seq., at p. 422.
8 Müller, W., Trau schau wem! Oder: Von der zivilrechtlichen Verantwortlichkeit der Mitgliedstaaten Internationler
Organisationen, Neue Juristische Wochenschrift (NJW) 1991, pp. 2175 et seq., at pp. 2177-2180, especially at p.
2180; see also the decision in the Westland Helicopters Case, 23 ILM (1984), pp. 1071 et seq., at. p. 1083.
9 Harders, J.E., Haftung und Verantwortlichkeit internationaler Organisationen in Wolfrum, R. (ed.), Handbuch des
Völkerrechts, pp. 248 et seq., at p. 251 (note 16).
10 Shihata, Role of Law in economic Development: The Legal Problems of International Ventures, 25 Revue
égyptienne de Droit International (1969), at p. 125, see also Seidl- Hohenveldern, I., Piercing the corporate veil of
International Organisations: The Tin Council Case in the English Court of Appeals, GYIL 1989, at p. 47;
Amerasinghe, C.F., Liability to Third Parties of Member States of International Organisations: Practice, Principle and
Judicial Precedent, 85 AJIL (1991), p.279 points out: "There seems to be general agreement that the issue of secondary
204 Effective Implementation of the CWC

two additional remarks have to made.

First, for the interpretations of the documents the rules of the Vienna Convention on the Law
of Treaties have to be applied, especially Art. 31 CLT if the documents are silent on a specific
issue. 1 And secondly, as said constitutional documents of an international organization may
include provisions limiting or acknowledging member states' liability for specific activities.
None of these provision provides for a reasonable ground to interpret the constitutional
documents in a way that, if the liability is excluded for specific activities, member states are
liable for activities carried out under the other provisions of the treaty.2 The same is valid for
provisions, which acknowledge member states' liability for a specific activities of the
internationalorganization3. 4 However, clauses excluding or including the liability of member
states for specific circumstances are valid under international law and have to be taken into
account.5

There is only a single provision of the CWC dealing with the liability of the Organization.
This is paragraph 22 of the Confidentiality Annex, excluding the liability of the OPCW for any
breach of confidentiality committed by a staff member of the Technical Secretariat. According to
two authors, this provision was included in the CWC to protect the Organization against claims
amounting to millions of US-Dollars for which States Parties could be held liable, and thus,
pose an incalculable risk on the States Parties. This risk could have kept states from ratifying
the CWC.6 But as stated above this clause does not provide any basis for further interpretation
of the CWC.
The travauxpréparatoires of the CWC, the Conference of Disarmament Documents, do not
contain any reference to the question of liability either.
Thus, the CWC must be interpreted "in good faith in accordance with the ordinary meaning
given to the terms of the treaty in their context and in the light of its objects and purpose”.7 The
last part of this rule is of special importance for the interpretation of the CWC regarding liability
of the OPCW. The mere fact that states have established the Organization produces some
information of the states’ intention regarding liability. The main tasks of the CWC is to control
the non- production, including chemical industries, and to oversee the destruction of existing
chemical weapons. The verification mechanism for compliance with the obligations under the
CWC includes on-site inspections as well as the observation of destruction of chemical
weapons. These activities include the risk of causing damage to the inspected facilities by
inspectors of the OPCW and there is no fund within the CWC providing for the compensation
if such damage occurs. If the Organization would be solely liable, two situation could occur.

or concurrent liability of members of an international organisation for the latter's obligations must be decided in the
first place by reference to the constituent instruments. This document is to be interpreted in the light of all the
circumstances so as to determine the intention, express or implied, of the parties to it.".
1Kewenig, W.A., Der Internationale Zinnrat - Ein Lehrstück des Wirtschaftsvölkerrechts, 36 Recht der
Internationalen Wirtschaft (RIW) (1990), pp.781 et seq. at p. 783; Müller, W., Trau schau wem! Oder: Von der
zivilrechtlichen Verantwortlichkeit der Mitgliedstaaten Internationler Organisationen, Neue Juristische Wochenschrift
(NJW) 1991, pp. 2175 et seq., at p. 2179.
2The absence of a provision excluding liability in the constitutional document leads Schemers, H., Liability of
International Organisations, 1 Leiden Journal of International Law (1988), at p. 9 to the conclusion that member states
are liable.
3 Ralph Gibson L.J. of the UK Court of Appeal in the Tin Council Case [1988] 3 All E.R. at p. 352/3.
4 Amerasinghe, C.F., Liability to Third Parties of Member States of International Organisations: Practice, Principle
and Judicial Precedent, 85 AJIL (1991), at p. 273.
5 Mann, F.A., Die juristische Person des Völkerrechts, 152 Zeitschrift für Handelsrecht (1988),pp. 303 et seq., at p.
315; Ebenroth at p. 219; Brownlie, I., Principles of International Law, 4th ed. 1990, at p. 695; v. Münch, I., Das
völkerrechtliche Delikt, 1963 at p. 262; Hoffmann, G., Der Durchgriff auf die Mitgliedstaaten internationaler
Organisationen für deren Schulden, Neue Juristische Wochenschrift (NJW) 1988, pp. 585 et seq., at p. 586 and 587.
6Krutsch, W./ Trapp, R., Commentary on the Chemical Weapon Convention, Dordrecht 1994, at p. 528.
7Art. 31 paragraph 1 of the Vienna Convention on the Law of Treaties.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 205

The Organization is either incapable of fulfilling its obligations, for which the budget provides,
as the funds would have to be used for compensation.1 Thus, the Organization could not
function anymore. The other possibility is that the work of the Organization could be
substantially limited as e.g. inspectors may change their verification methods in order to avoid
any damage. The fulfillment of obligations under the CWC by inspectors covers always the risk
of damaging something. Thus, given the case that damage had been caused and the
Organization is liable for it, the future OPCW will either be limited in functioning or, if the
Organization did not pay its debts, it will be difficult to find trading partners. Both alternatives
will create major problems for the functioning of the future OPCW.2 States must have been
aware of this risk during the setting up of the Organization. As it was the intention of states to
set up the Organization they must provide for a proper functioning of the organization, which
includes that they provide sufficient money for its activities. Operating an international
organisation without guaranteeing that someone will compensate for its obligations is
impossible.3 Thus, States Parties, as the founder of the Organization, must be and are liable for
acts of the future OPCW.4 The intention of States Parties to provide sufficient money for the
functioning of the OPCW is also expressed in the Draft financial rules of the OPCW, which
include a provision that money will be provided for unforeseen and extraordinary expenditures.

IV. Institutions
If recognizing that the States Parties are liable for acts of the Organization it will be to the
benefit of the Organization to set a clear procedure, as to how claims against the Organization
can be filed.5 Such a claim settlement procedure must include, inter alia, the following aspects:
- A dispute settlement board should be established, which will consider contested claims as
well as the amount of damage, if contested, and which decisions are binding for the parties
involved;6
- Clear procedural rules for lodging a claim and for the proceeding of the case;
- A scheme has to be developed, which reveals how States Parties will provide money for the
compensation. It seems to be reasonable to implement a "compensation fund", which would

1See Müller, W., Trau schau wem! Oder: Von der zivilrechtlichen Verantwortlichkeit der Mitgliedstaaten
Internationler Organisationen, Neue Juristische Wochenschrift (NJW) 1991, pp. 2175 et seq., at. p. 2177; PC-
X/B/WP.3 paragraph 7.
2 Ebenroth, C.T./ Fuhrmann, L., Die zivilrechtliche Haftung internationaler Organisationen und ihrer
Mitgliedstaaten, Juristische Zeitung (JZ) 1989, pp. 221 et seq., at p. 217, see also Seidl- Hohenveldern,I./ Loibl, G.,
Das Recht der Internationalen Organisationen einschließlich der supranationalen Organisationen, 5th ed., Köln 1992,
no. 1909.
3The intention of States Parties to provide sufficient money for the functioning of the future OPCW might also be
expressed in other documents of the OPCW, such as policies or the financial rules, which are currently in the drafting
process.
4It is quite often pointed out in the discussion on liability of International Organisations that for more technical
characterized organisations (such as the OPCW), which have only a annual budget, and therefore depend on the members
states member states should be liable, whereas more economic characterized organisations (such as e.g. the World
Bank), which have a captial to work with, shall be solely liable.
5See Bothe, M., Obligations and Protection of Individuals, paper presented at the Workshop on The Convention on
the Prohibition and Elimination of Chemical Weapons, Hague Academy of International Law, at p. 10 , forthcoming in
Recuil de Cours: Convention on the Prohibition and Elimination of Chemical Weapons: A Breakthrough in Multilateral
Disarmament, points out, that it is a basic human right requirement, that the individual has an effective remedy if
suffering damage. But as a general rule it is excluded against international organisations, due to the immunity of the
organisation and its agents. He therefore pleads for a claim settlement procedure of the OPCW, as the organisation
would set a good legal precedent in this field; See also Pernice, I., Die Haftung internationaler Organisationen und ihrer
Mitarbeiter, 26 Archiv des Völkerrecht (AVR) (1988), pp. 406 et seq., at p. 433; Perez Gonzalez, M., Les
Organisations Internationales et le Droit de la Responsabilité, 92 RGDIP (1988), pp. 63 et seq., at p. 101.
6Some international organisation do have such a claim settlement procedure, e.g. the ILO. Here the competence to
settle such claims rests with the Administrative Tribunal of the ILO (see Art. II (4) ILO-AT- Statute. For further
references see Bowett, D. W., The Law of International Institutions, 4th ed., London 1982, at p. 375; this was also
proposed by the Executive Secretary of the PTS in PC-X/B/Wp.3 paragraph 24 et seq.
206 Effective Implementation of the CWC

pay for compensation of claims. The fund could be set up in the following way: Each State
Party pays its appropriation to the budget and pays additionally 1 per cent of this amount to the
compensation fund. This will not be too cost-intensive for States Parties and provides for the
possibility that the Organization can work with the money on the market in order to increase the
total sum of the fund available. Over a period of 5 years the total sum of the fund should be
sufficient to deal with the claims. Given the case that the capital of the fund would be too small
to deal with all possible claims initially the above mentioned system could be set for a certain
period again. An initial payment of 5 per cent in the first year and then 1 per cent in the
following years would even more reduce the possibility of later payments being required by
States Parties. To implement such a payment scheme also has certainly a positive effect on the
ratification process: as stated above, paragraph 22 of the Confidentiality Annex should
minimize the possibility that states do not ratify the CWC due to the incalculable risk of liability
arising from breaches of confidentiality. But this leaves still untouched the risk of liability for
acts other than breaches of confidentiality. The compensation fund as outlined above would
reduce the risk for states of payments of compensation and thus, states could be more willing to
ratify the CWC. Further, it would prevent long ongoing struggles between states about the
percentage liability of each state for each compensation especially for states for which the CWC
is almost not relevant due to a very small chemical industry, would be unwilling to pay large
sums for compensation. Another, but definitely more cost-intensive scheme is that each State
Party pays the same percentage for each compensation claim as it pays towards the budget;1
- A provision must also be included that states are not liable vis à vis the claimant, but
towards the Organization, so that the claimant can only sue the Organization. This would avoid
the possibility that national courts of States Parties pass judgments on such issues and thereby
develop an inconsistent pattern for the settlement of claims. It will also give the Organization a
more independent standing from its States Parties;
- Safeguards for the assurance of payments by the State Parties for obligations arising from
an obligation of the Organization will have to be developed. Here the same sanctions as for
failure to pay the assessed contribution to the budget of the Organization could be
implemented;2
- Similar to the practice of the IAEA, activities of the OPCW will have to be identified for
which liability can be covered either by concluding agreements with States Parties in a way that
the individual member state is liable for that specific activity or by insurance for that specific
activity.3

V. Conclusion
As has been said before, the future OPCW will be liable for its acts. In order to facilitate a
proper functioning of the Organization, States Parties must provide sufficient money to
compensate claims, which are brought against the Organization and where the liability of the
Organization is established. States Parties are liable for compensation of these claims either
towards the Organization or towards the claimants. Instead of dealing with each claim
separately on a case by case basis, procedures and institutions, dealing with these claims,
should be established. This would improve the standing of the future OPCW and contribute to a

1Noyes, J.E./ Smith, B.D., State Responsibility and the Principal of Joint and Several Liability, 13 The Yale Law
Journal of International Law (1988), at p. 261 suggest this solution by addressing the issue in a broader context.
2Article VIII paragraph 8 of the CWC.
3On the practice of the IAEA see Rockwood, L., Responsibility of the international organisation and its civil
servants, paper presented at the Workshop on The Convention on the Prohibition and Elimination of Chemical
Weapons, Hague Academy of International Law, at p. 5 et seq., forthcoming in Recuil de Cours: Convention on the
Prohibition and Elimination of Chemical Weapons: A Breakthrough in Multilateral Disarmament.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 207

successful functioning of the Organization.

In closing the issue of compensation for breaches of confidentiality shall be considered
briefly. As shown above the Organization is not liable for any breach of confidentiality of a
staff member of the Technical Secretariat. But some States Parties1 desire compensation to be
provided, the OPCW can only pay ex gratia payments to compensate the damage caused by a
breach of confidentiality. This would require that the States Parties develop a fund to be used in
such cases. In order to facilitate a fair treatment of these claims ex gratia payments should only
be provided according to the occurrence of specific circumstances. These circumstances have to
be defined and should be included in guidelines for the handling of such claims. Cases in which
either the grounds for ex gratia payments are contested or the amount of the payment shall be
referred to the compensation settlement board which will give its advisory opinion on the case.
The right to refer a case to the compensation settlement board shall only rest with the States
Parties and the Organization. The opinion offered is not binding upon States Parties and the
final decision shall be taken by the Conference of State Parties or the Executive Council. Any
decision of the Conference of State Parties/ Executive Council shall not serve as a precedent. Ex
gratia payments are made voluntarily and anything that could set some sort of legal binding
rules (e.g. customary rules) should be avoided.

1See note 1.
208 Effective Implementation of the CWC

Effective Regime Governing Sanctions against Staff

Members of the Technical Secretariat for Breaches of
Confidentiality

YORK VON LERSNER, PATRICIA RADLER, THOMAS KURZIDEM,

THOMAS STOCK AND RONALD G. SUTHERLAND

I. Introduction
Once the Draft OPCW Policy on Confidentiality was finalized and adopted at the Eleventh
Plenary of the PrepCom,1 the Expert Group on Confidentiality was entrusted with investigating
the issue of penal sanctions against Technical Secretariat (TS) staff members for breaches,
especially serious breaches, of confidentiality.2 While investigating the various possibilities for
a regime governing breaches of confidentiality the group will focus particularly on the
possibilities of concurrent jurisdiction.3 The implementation of such a regime - whether
established under concurrent or a single jurisdiction - requires implementation within the
national penal legislation of States Parties. States Parties have either to defer their jurisdiction
for these offences (single jurisdiction system) or to implement penal provisions for serious
breaches of confidentiality to prosecute staff members in accordance with national law once the
immunity of the staff member has been waived by the Director-General.4 The purpose of this
paper is to address some aspects of the development of an effective regime governing sanctions
against staff members of the TS for breaches of confidentiality and its implementation into the
legal systems of States Parties. Thus, for the establishment of such a regime the prerequisites of
it first have to be elaborated,5 second, compliance with these prerequisites in a single or
concurrent jurisdiction have to be examined,6 and finally, the results of the examination have to
be compared.7

II. Requirements of an effective regime

The establishment of an effective regime requires compliance with standards of criminal
procedure in both national and international law.8 Therefore the following points have to be
taken into account:

1 PC-XI/17 paragraph 7.7 (page 5).

2 Commission Report PC-XI/17 paragraph 7.8 and 7.9 (page 6); also Annex 2 to this Report at p. 22, paragraph
IV.1.
3 The issue has already been considered by the PTS (PC-VII/B/WP.1 and PC-X/B/WP.3 paragraph 16 et seq.) and
within the Expert Group on Confidentiality at the beginning of this year (PC-X/B/WP.7 paragraph 2). By a concurrent
jurisdiction solution it is understood that all State Parties can enforce their jurisdiction for breaches of confidentiality
according to certain circumstances (e.g. the breach has been committed on the territory of the State Party or the culprit
or the victim of the breach is a national of the State Party). Whereas in a single jurisdiction solution all State Parties
would have to defer their jurisdiction for breaches of confidentiality under the jurisdiction of one State Party, which will
enforce its jurisdiction for all breaches of confidentiality.
4 The Director-General can waive the immunity of staff members pursuant to paragraph 20 of the Confidentiality
Annex.
5 see under II. Requirements of an effective regime (below).
6 see under III. Examination of the prerequisites in asingle or concurrent jurisdiction based system (below).
7 see under IV. Conclusion (below).
8Crawford, J., The ILC adopts a Statute for an International Criminal Crime Court, 89 AJIL (1995), at p. 416.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 209

The definition of a breach and a serious breach of confidentiality

One standard of criminal procedure is the principle of nullum crimen sine lege, which, inter
alia, means that one can only be prosecuted and convicted if the offence has been established in
law before the action of the culprit took place. The lack of clearly defined war crimes was one
of the main criticisms during the Nuremberg War Crime Tribunal.1 Thus, a clear and
unambiguous definition of what establishes a serious breach of confidentiality has to be
developed. The same applies to breaches of confidentiality for which disciplinary measures will
be imposed.2 Without precise definitions, different sanctions for cases with similar facts could
be imposed and the regime would appear to be arbitrary. However, clear definitions are only
useful if they are known by the staff members of the TS. Thus, it is necessary to include these
definitions in the Staff Rules and Regulations and staff members should sign a separate
declaration, stating that they are aware about the existence of possible offences and penalties.
This will also foster the effect of deterrence, which requires the knowledge of the offences by
potential culprits.
The imposement of sanctions
For an effective regime it is necessary that sanctions for serious breaches of confidentiality are
imposed in accordance with the facts of the case and independent of the standing of staff
members. Otherwise the regime would fail of having an effect of deterrence, which is an
important part of it. To meet this requirement the following has to be observed:

Waiver of Immunity
The wording of paragraph 20 of the Confidentiality Annex grants discretion to the Director-
General for waiving the immunity of staff members.3 In order to withhold the effect of
deterrence of the penal sanctions, the discretion of the Director-General has be limited.
Otherwise, the effectiveness of the regime will only depend on the Director-General's exercise
of discretion which leaves room for arbitrary decisions in cases of similar facts. Thus, it would
be useful to consider the issuing of rules or guidelines concerning facts of when the immunity
may be waived.
Further, the Attorney-General of the State Party enforcing its jurisdiction, who is in charge of
prosecuting theses offences, has to be obliged to investigate each individual case, in which the
immunity of a staff member has been waived.
Third, as the waiving of immunity always will be one of the last steps to be taken by the
Director-General in an investigation, an independent committee should also investigate the
allegation. This limits the discretion of the Director General or the attempts of any other staff
member to influence the investigation. In this respect, one should also pay attention to the
problem of when an investigation will be initiated. The wording of the Chemical Weapons
Convention (CWC) is unambiguous; only the Director-General can initiate an investigation.4
Here, rules have to be established, which may limit the discretion of the Director-General due to
objective facts, such as e.g., an allegation by a State Party, two different allegations
independent from each other by professional staff members etc., should automatically lead to an
investigation.

1 Ipsen in Ipsen, Völkerrecht, third ed., Munich, 1990, §38 no. 25.
2 Paragraph 20 of the Confidentiality Annex of the CWC.
3 Paragraph 20: ....In cases of serious breaches, the immunity from jurisdiction may be waived by the Director-
General.
4 Paragraph 19 of the Confidentiality Annex of the CWC.
210 Effective Implementation of the CWC

Appearance in court and execution of sanctions

For an effective regime the accused staff member has to appear in court. Furthermore, any
sentences delivered by court must be enforced.
Jurisdiction
To establish an effective regime requires that no ambiguities exist regarding the enforcement of
the jurisdiction. Otherwise the initiation of the trial would be delayed due to contested opinions
of States Parties concerning the enforcement of jurisdiction.
Firm legal basis of the criminal court
A requirement which has to be observed is that any court hearing the case of a serious breach of
confidentiality needs a solid legal foundation.1 This is certainly given for courts in the national
legal system. A single jurisdiction solution would require an agreement by States Parties that
courts of one State Party (preferable the Netherlands as the host country)2 can enforce their
jurisdiction in case of alleged serious breach of confidentiality.
Rules of criminal procedure
Rules governing the criminal procedure have to be established. The necessity of such criminal
procedures has previously been recognized by the International Law Commission (ILC) as a
requirement of any international criminal court.3 Therefore, clear and unambiguous rules have
to be elaborated with which all staff members have to be familiar.4 The importance of this
requirement is highlighted again by reference to the Nuremberg War Crime Tribunals, where
the applicability of Angolo-American criminal procedure rules have been heavily criticized due
to the fact that the culprits were not familiar with these rules.5

III. Examination of the prerequisites in a single or concurrent

jurisdiction based system
With regard to the prerequisites of a definition of a serious breach of confidentiality the danger
exists that, even if the definition is implemented in all national penal acts (concurrent
jurisdiction solution), similar cases will be interpreted differently by courts of different States
Parties.6 This will lead to unequal treatment of staff members with nationality being the decisive
factor for the unequal treatment. The problem would not occur in a single jurisdiction system as
the same court will always hear the case and develop precedents for the offence.
Examining the question of investigation of Attorney-Generals there is no difference between a
single and the concurrent jurisdiction solution. The same is valid for the waiving of immunity,
being an aspect that is exclusively in the sphere of the Organization.
The appearance in court would be assured in a concurrent jurisdiction system. Each State
Party will certainly comply with that requirement and the staff member concerned would appear
in court. However, the crucial weakness of a concurrent jurisdiction system is that courts could
be influenced by States Parties or receive orders to take a favorable decision for the accused,
especially if the State Party has benefited from the offence. Here, legal ‘safe heavens’ for

1See to that Crawford, J., The ILC adopts a Statute for an International Crime Court, 89 AJIL (1995) at p. 416.
2 See also PC-X/B/WP.3 paragraph 20.
3 See Crawford, J., The ILC adopts a Statute for an international Criminal Court, 89 AJIL (1995) at p.416.
4 However, so far no complete body of rules for criminal procedures exists in international law, see Crawford, J., The
ILC adopts a Statute for an international Crime Court, 89 AJIL (1995), at p. 407.
5 Ipsen in Ipsen, Völkerrecht, 3rd ed., Munich 1990, §38 no. 25.
6 See also PC-VII/B/WP.1 paragraph 4.5.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 211

national staff members could be established, 1 and the State Party, by trying the staff member
before its court, would even comply with its obligation under the CWC.
For a single jurisdiction solution, appearance in court is one of the, if not the major, problem.
To comply with this prerequisite States Parties have to extradite staff members of the TS
regardless of their nationality. But the extradition of its own nationals by a state is prohibited by
law in many countries,2 and an obligation to extradite staff members is not included in the
CWC. The argumentation that States Parties are obliged to extradite their nationals pursuant to
Article VII paragraphs 2 and 7 of the CWC in conjunction with paragraph 21 of the
Confidentiality Annex (extradition as part of the obligation to cooperate)3 cannot be upheld.
Article VII paragraph 2 refers to obligations of States Parties under the CWC (mainly Article I
and Article VII paragraph 1 CWC) and there is nothing in the wording which refers to an
obligation to extradite its own nationals by States Parties. As such an obligation affects the
basic relationship between an individual and the national state, the obligation - new in
international law - would need to be expressed explicitly in the CWC. Considering paragraph
21 of the Confidentiality Annex States Parties are only obliged ‘to the possible extent’ to
cooperate and to support the Director-General in the investigation of a breach of confidentiality.
The limitation ‘to a possible extent’ clearly shows that States Parties were aware during the
negotiations of the CWC, that their cooperation may be limited in the investigation due to their
respective national laws. It would therefore, be a mis-interpretation of the Convention, if this
limitation is not respected. Further, under paragraph 21 of the Confidentiality Annex States
Parties are only obliged to cooperate with the Director-General during the investigation of the
alleged breach, and the investigation itself does certainly not require the extradition of staff
members. To support the Director-General in taking appropriate action, in cases a breach of
confidentiality has been established, does not include the obligation for States Parties to
extradite their own nationals.4
Examining the requirement of jurisdiction, it is obvious that a single jurisdiction system
complies with the prerequisites of this requirement, whereas a concurrent jurisdiction system
raises various problems in this respect. The question will be to define, which state can enforce
its jurisdiction according to which circumstances. Given the scenario that a staff member, who
is a national of state A, committed a breach of confidentiality in a state B and thereby causes
damage to state C. Is it State A, B or C which should enforce its jurisdiction?
The enforcement of sentences in a concurrent jurisdiction system allows States Parties the
opportunity to produce ‘safe heavens’ for the staff member by either not applying any sanction
or applying the sanction in a way, that would be contradictory to the purpose of Part D of the
Confidentiality Annex.5 This opportunity, however, is not given in a regime based on a single
jurisdiction, as the State Party, which enforces its jurisdiction, will also execute the sentence
and the execution will be observed by other States Parties. Furthermore it is unlikely that the
executing State Party, even if it has benefited from the breach, will apply different standards on
convicted TS staff members as the State Party would lose to a great extent confidence on the
political level.

1 PC-X/B/WP.3 Paragraph 18.

2See to that Jennings/ Watts, Oppenheim’s Intrnational Law, Oxford 1990, at p. 956.
3 PC- X/B/WP.3 paragraph 19.
4 This position is shared by Krutzsch, W./Trapp, R., Commentary on the Chemical Weapons Convention, Dordrecht
1994, at p.118/9, where it is pointed out that ‘Cooperation and legal assistance in the prosecution of such offences
(serious breaches of confidentiality) should exerted in the following fields: - extradition;...(other fields are
following)..’. Although it is not totally clear what is meant by the term ‘exerted’ in this context it is assumed that the
authors refer to extradition being a field to which cooperation should be extended and that no obligation to extradite
own nationals does exist for the States Parties under the CWC so far.
5 That states are quiete willing to produce such safe heavens is demonstrated by an example: After the bombing of the
Rainbow Warrior the two French agents have been banned on an island in the South Pacific for three years. Both agents
were brought back to France after one year and recently being honoured for this action.
212 Effective Implementation of the CWC

Regarding clear procedural rules, it has to be observed that all staff members are familiar with
the criminal procedure rules and, particular with their rights in a trial. This is especially relevant
for a single jurisdiction system, but could also be relevant for a concurrent jurisdiction solution,
given the case where a staff member will be prosecuted in a state other than his national state.

IV. Conclusion
Comparing the two possibilities for an effective regime, it became obvious that a solution based
on a single jurisdiction for these offences is the preferable solution. A regime based on
concurrent jurisdiction contains too many weak points and thereby, leaves room for States
Parties to undermine the purpose of Part D of the Confidentiality Annex. However, states are
very unwilling to defer their jurisdiction and a solution to the problem of extradition seems to be
very unlikely at the moment.1 Thus, the establishment of an effective regime based on
concurrent jurisdiction will be the predictable solution. In order to limit the above noted
weaknesses safeguards have to be established in an agreement by the States Parties. This
agreement has to include, inter alia, the following points: 2
• All States Parties implement the same definition of a serious breach of confidentiality in their
penal law system. This definition must define not only the circumstances of the offence, but
also a minimum sanction for the offence. Further, one could also list sanctions proposals in
accordance with the seriousness of the breach which should be taken into account by
national courts as guidelines. This will help to come closer to a uniform application of the
definition and sanctions;
• The OPCW has to observes any such trial, the execution of sanctions and has to reports to
the Executive Council. Another possibility is to include these reports in the annual
Confidentiality report;
• Clear definitions under which circumstances which States Parties' jurisdiction will apply;
• Evidence produced during the investigation of the case prior to the waiving of the immunity,
has to be applicable in the trial; and
• State Parties have to consider the interpretation of the definition of the offence by observing
different cases. Directives for the interpretation should be developed, which are binding for
national courts.

To adhere to these prerequisites will certainly help to develop and strengthen an uniform
application to the offence ’serious breach of confidentiality’ and thus, provide for and support
an effective regime governing the sanctions against staff members of the TS for breaches of
confidentiality.

1 See the difficulties described by W.C. Gilmore, Combating International Drugs Trafficking: The 1988 United
Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Commonwealth Secretariat,
London, at p. 20 during the discussion of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances by addressing the problem of extradition; see also Jennings/ Watts, Oppenheim’s
International Law, Oxford 1990, at p. 956 and footnote 4 on that page.
2 The list is far from being complete.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 213

C. Discussion Papers by Participants

Problems Standing before Russian Chemical Industry

because of Ratification of the Chemical Weapons
Convention

Igor. K. Bazarnykh and Vladimir V. Mokrousov

Currently Russia prepares its national arrangements to ensure the effective implementation of
Russia’s obligations regarding declarations and the verification of all categories of facilities
subject to the control mechanisms of the CWC.

Roskomkhimnefteprom is a federal government body tasked with the supervision of most

parts of the Russian chemical industry. In close collaboration with the President’s Committee
on Conventional Problems of Chemical and Biological Weapons of the Russian Federation, it
carries out a great work on information collection and the preparation of chemical enterprises to
activities in terms of the Convention. Such enterprises include facilities specified in Articles V
and VI of the Convention.

Facilities specified in Article V of the CWC (CW Production Facilities)

Preparation for the declarations of that category facilities was begun in good time, within the
framework of an experiment conducted jointly with the USA on declarations exchange,
followed by inspections of the facilities concerned, which constitute the chemical warfare
potential of the two states. These activities were carried out within the framework of the
bilateral Wyoming Memorandum. Now the leaders of these facilities, in general, are ready for
all verification activities as specified in the Convention, including initial and annual declarations
and inspections.

Facilities specified in Article 6 of the Convention

Facilities of this category (facilities dealing with chemicals listed in Schedules 2 and 3, or
concrete organic chemicals and PSF chemicals) constitute the main quantity of chemical
industrial enterprises to be verified under the Convention. As for facilities dealing with
chemicals listed in Schedules 2 or 3, in our opinion, there will be no particular difficulties
regarding the preparation of declarations. The number of such facilities in Russia is relatively
small. The main difficulties with regard to the collection of information will arise regarding
facilities dealing wit ‘concrete organic chemicals’ and ‘PSF chemicals’. The matters become
complicated because this type of facilities in the former USSR were controlled, besides the
Department of Chemical Industry (whose successor is Roskomkhimnefteprom), by other
departments as well. In today’s situation in Russia, in connection with the progress of non-state
property forms, search of information about such facilities is a rather complicated task. At
present, questionnaires were prepared by us, which were distributed to successor organizations
of the former departments of the USSR. It should be noted, that according to our preliminary
214 Effective Implementation of the CWC

estimates, the number of this type production facilities may account to several hundreds. After
revealing all the facilities, subject to declarations and verification pursuant to Article VI of the
CWC, it is planned to set up a permanent data base in the National Authority, that will be
updated by regular interaction between the National Authority and the facilities concerned.

Some additional difficulties are expected with regard to the collection of specified
information. There is a certain discrepancy between the national legislative base and the
economic situation in Russia which may give rise to difficulties regarding the submission
relevant data by some non-state owned enterprises which may consider the data concerned to be
commercially secret. This problem needs to be solved by regulations still to be elaborated.

At present, practically all the enterprises of Russia’s chemical industry are joint-stock
companies and are not under the direct jurisdiction of federal bodies of the executive power. In
this context, inevitable difficulties should be expected related to access of international OPCW
inspectors either to private owned or joint-stock Russian enterprises.

The conduct of international inspections in joint chemical enterprises with shares of foreign
capital will be a no less difficult matter for the National Authority. In the event of their
inspections, a conflict situation may arise already at the stage of pre-inspection preparations, if
the representatives of business circles from states which are no parties to the Convention will be
partners of Russian businessmen.

It should be noted, that now, for above mentioned reasons, a number of our leaders and
proprietors of chemical enterprises have some deficiency in information and education, relative
to their obligations regarding declarations and inspections within the framework of the
Convention. Many leaders and proprietors of enterprises suppose that the Convention will have
no impact on them as their activities are not related with chemical weapons. To overcome this
deficiency, we plan a series of workshops for leaders and managers of chemical enterprises,
where all their obligations and rights pursuant to the terms of the Convention will be explained
to them. Representatives from associations of the chemical industry are expected to take part in
these workshops as well. For this purpose, experts will prepare materials explaining the articles
of the Convention related to declarations and inspections which will be distributed among the
participants. To our regret, the text of the Convention is written in a not quite popular language.
Suitable declaration formats currently prepared by the PTS/OPCW, will be offered and
considered at these workshops. Such workshops are supposed to be held periodically with the
purpose to prepare the leaders of the above-mentioned enterprises to comply with their
obligations.

The are also problems with regard to the collection of confidential information at the national
level, its transfer to the National Authority, its storage at the national level, its transfer from the
National Authority to the OPCW and its storage there. Some problems have to be solved here
with regard to the information handling mechanism and with regard to the responsibilities of
persons having access to such kind of information, both at the national level and in the OPCW.
We hope, that once the Convention enters into force the OPCW will provide an unified code of
rules and procedures for handling sensitive information and its protection in a way, that will be
clear and acceptable for leaders and proprietors of chemical industrial enterprises. At the
national level this will require the adoption of suitable legal regulations.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 215

The New European Union Regime for the

Control of Exports of Dual-use Goods

Dr. Thilo Marauhn

I. Introduction: implementing the CW Convention in the EU context

Prima facie, the European Union and the CW Convention seem to have nothing to do with
each other. However, the issue of export controls on dual-use chemicals and equipment brings
the two together. While neither the European Union nor the European Community may become
parties to the Convention, the CWC, nevertheless, will be implemented in the EU context. This
is of particular importance in regard to export controls and restrictions envisaged by the
Convention. Usually, States Parties to the Convention will only adopt national implementing
measures to make the CWC effective. Due to the distribution of powers within the EU
framework this will be different for EU Member States. They will have to consider whether to
adopt national, intergovernmental (within the framework of the Common Foreign and Security
Policy [CFSP]) or supranational implementing measures.
Strategic export controls and restrictions vis-à-vis third states have only recently become a
matter of Community interest. It was in early 1991 when the Commission first initiated the
harmonisation of export controls on dual-use goods. While disputes as to Community
competence, however, for some time prevented the establishment of a common regime,
meanwhile, EU Member States have agreed on a double legal basis for harmonised export
controls: a Council Decision within the framework of the CFSP based on Article J.3 of the
Treaty on European Union and a Regulation based on Article 113 of the EC Treaty. As the
preamble of the Regulation indicates these two instruments form an integrated system.
The Regulation with its 24 Articles may be divided into three parts. The introductory part
(Articles 1 and 2) specifies the subject of the Regulation and includes a provision on
definitions. Articles 3 - 15 then deal with exports from the Community to third states. The third
part (Articles 16 - 24) includes final provisions which also address problems of intra-
Community trade. Turning to the Council Decision, it mainly consists of several annexes.
Annexes I, IV and V establish lists of dual-use goods subject to export controls. As these lists
do not form part of the Regulation itself they can be easily amended by another decision of the
Council. This procedure serves to reduce discussions of the list within the Commission or even
the European Parliament what some Member States would have considered to be detrimental to
their security interests. Annex II includes a country list while Annex III lays down criteria for
issuing export licences.

II. The scope of the regime

The Council Regulation covers the export of dual-use goods to third states and certain intra-
Community transfers. The mere passing through the territory of the Community of dual-use
goods falls outside the provisions of the Regulation. Also, neither the transfer of sensitive
know-how nor the provision of services are covered by the Regulation. However, the term
"dual-use goods", simply defined as "goods which can be used for both civil and military
purposes" (Article 2, paragraph a), seems to have been given a fairly wide meaning, since the
216 Effective Implementation of the CWC

goods listed in Annex I to the relevant Council Decision include software and technologies.
This must be taken into account in regard to those dual-use goods not listed in Annex I to the
Council Decision but nevertheless subject to a licence requirement if intended for use in
connection with weapons of mass destruction (Article 4).
Under Article 3, paragraph 1, of the Regulation certain listed dual-use goods are subject to
authorisation. This list, included in Annex I to the Council Decision, may be considered as the
core element of the harmonisation achieved within the Community so far. Annex I, Category 1,
inter alia, covers chemical substances and equipment, including, under heading 1C350, the 54
chemicals agreed upon within the Australia Group. In principle, the licence requirement applies
to all exports to third states. However, on the basis of Article 6, paragraph 1(a), of the
Regulation and in accordance with Article 3 of the Council Decision general authorisations may
be adopted in licensing dual-use goods to certain destinations listed in Annex II to the Council
Decision. At the time of entry into force of the new Community export control regime (1 July
1995) this list included Australia, Canada, Japan, Norway, New Zealand, Switzerland, and the
United States of America.
In regard to the licence requirement concerning dual-use goods not listed in Annex I to the
Council Decision, Article 4, paragraph 1, of the Regulation stipulates that an export will be
subject to authorisation "if the exporter has been informed by his authorities that the goods in
question are or may be intended, in their entirety or in part, for use in connection with the
development, production, handling, operation, maintenance, storage, detection, identification
or dissemination of chemical, biological or nuclear weapons or the development, production,
maintenance or storage of missiles capable of delivering such weapons, as covered by the
corresponding non-proliferation arrangements". This "catch-all" provision is obviously
modelled on Section 5 c of the German Foreign Trade and Payments Ordinance, which,
however, in contrast to Article 4, paragraph 1, of the Council Regulation, is not limited to
weapons of mass destruction and their means of delivery. It is noteworthy that the licence
requirement under Article 4, paragraph 1, is triggered by the information provided by the
authorities ("if the exporter has been informed by the authorities"). If the exporter himself has
knowledge of the goods in question being intended for use in connection with weapons of mass
destruction he must notify the authorities (Article 4, paragraph 2). Only positive knowledge and
intended (not potential) use trigger this obligation. It is up to the authorities then to decide
whether or not the export concerned should be made subject to authorisation.
According to Article 5 of the Regulation Member States may enact stricter provisions for
products not included in Annex I to the Council Decision. When it became clear during the
negotiations that the EU export control regime would not be as strict as the existing German
foreign trade legislation, Germany insisted that this provision was included in the Regulation.
National measures falling within Article 5 of the Regulation have to be notified by the Member
State and shall be published in series "C" of the Official Journal of the European Communities.

III. The licensing procedure

Licences have to be applied for in the Member State where the exporter is registered, not in
the Member State where the products are manufactured or stored (Article 7). A list of the
competent national authorities empowered to issue export authorisations for dual-use goods will
again be published in series "C" of the Official Journal of the European Communities.
In principle, each export requires an individual authorisation (Article 6, paragraph 1).
However, general and global authorisations as well as simplified procedures in the case of
stricter national regulations are permissible. In general, the Regulation only includes marginal
references to the licensing procedure. Apart from the general obligation to "take appropriate
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 217

measures to ensure proper enforcement of all the provision of this Regulation" (Article 17),
including the determination of penalties to be imposed in the event of breach of provisions of
the Regulation, Member States only have to inform the Commission of the laws, regulations
and administrative provisions adopted in implementation of the export control regime (Article
18).
In regard to the criteria to be applied in deciding whether or not to grant an export
authorisation, Article 8 of the Regulation refers to Annex III to the Council Decision which sets
out several common guidelines. These encompass respect for international obligations of the
Community and its Member States, including non-proliferation agreements and UN Security
Council Resolutions. Thus, the CW Convention is also covered and its obligations related to
the transfer of chemical substances and equipment may be given due respect. It is noteworthy,
however, that the criteria listed in Annex III to the Council Decision do not have to be applied
strictly. As Article 8 of the Regulation stipulates, they only have to be taken "into
consideration" when deciding on the granting of an export authorisation. Although the
Regulation thus lacks harmonisation in a core area of export control, international agreements
such as the CW Convention and the administrative practice of Member States developed in the
course of their implementation may contribute to de facto harmonisation in the end.
Customs procedures are, in principle, covered by the Community Customs Code, with minor
additional requirements under Article 10 of the Regulation.

IV. Avoiding licence shopping

As stipulated in Article 6, paragraph 3, of the Regulation "the export authorisation shall be

valid throughout the Community". Taking into account the only rudimentary harmonisation of
licensing criteria, this may give rise to what has been called "licence shopping", i.e. to apply for
a licence in a Member State where an export is easiest to be authorised. The drafters of the
Regulation have been aware of this problem and have introduced safeguards against such
"licence shopping".
First, if the dual-use goods concerned will be exported to a particularly sensitive destination
and if these products are or will be located in a different Member State than the authorising one
(as has to be indicated on the application) the licensing authorities shall consult the authorities of
the other Member State (Article 7, paragraph 2).
Second, "if an exportation might prejudice its essential interests, a Member State may request
another Member State not to grant an export authorisation or, if such authorisation has been
granted, request its annulment, suspension, modification or revocation" (Article 7, paragraph
3); following this request, the Member States concerned shall consult each other.
Third, a Member State may prevent dual-use goods from leaving the Community via its
territory even though the export was duly authorised if it considers the exportation to be
"contrary to its essential foreign policy or security interests or to the fulfilment of its
international obligations or commitments" (Article 10, paragraph 4).
Fourth, Member States may apply intra-Community controls if the final destination of the
dual-use goods is outside the Community (Article 19, paragraph 3), also, if the goods
concerned are listed in Annex IV to the Council Decision (Article 19, paragraph 1[b]), which
does not include chemical agents. These controls on intra-Community trade, however, only
apply during a transitional period of three years (Article 19, paragraph 5).
Fifth, Article 21 which is of unlimited duration requires authorisation for intra-Community
transfers in regard to fissionable material (plutonium and enriched uranium).
Finally, another transitional provision (Article 20, paragraph 1) enables Member States to
apply additional export controls in intra-Community trade in respect of goods listed in Annex V
218 Effective Implementation of the CWC

which includes several chemicals listed in Annex I.

V. Community export controls in light of the CWC and the Australia Group

A detailed comparison of Community export controls, those agreed upon within the Australia
Group and those envisaged by the CWC would go beyond the scope of this background paper.
Nevertheless, a few general remarks may illustrate how these three systems are interrelated.
As to the new EU regime and the Australia Group, it must be noted that the European
Commission has taken part in the activities of the Australia Group from its very beginning.
Also, it has been shown that the 54 substances included in the Australia Group list are covered
by the new Community legislation. Further, the objective of both regimes is to stop the supply
of dual-use goods to certain destinations that might, inter alia, produce chemical weapons.
While, however, the Community regime covers all kinds of strategic products, the Australia
Group focuses on CW precursors.
Comparing the two export control regimes with the CWC, it is noteworthy that, while the
major focus of concern of all three regimes are the same CW agents, the objectives are rather
different. Although the CWC also includes provisions on export control and restrictions it is far
more than a supply-side non-proliferation regime. It is comprehensive in scope. The three
Schedules, though they have some meaning in regard to export controls, primarily serve to
implement verification measures. The objective of these measures is to provide assurance to
each State Party to the Convention that the other States Parties are complying with their
obligations under the CWC, including not to produce chemical weapons. Consequently, the
Schedules do not only include precursors but also CW agents. On the other hand, since the
objectives of the Australia Group are more limited and highly focused, some precursor
chemicals which are early in the production process are included in its list, while they are not
suitable for effective monitoring under the CWC and have thus been omitted from the three
Schedules.

VI. Conclusion

With the adoption of the new export control regime the European Union has acquired the
means to accommodate Member States obligations under the CWC and the provisions of the EC
Treaty. Although this new export control regime can only be regarded as a first step towards
joint implementation it sets a precedent which may be followed by other regional groups within
the Organisation for the Prohibition of Chemical Weapons (OPCW). In regard to the CFSP,
which has not been discussed here, EU Member States have failed to adopt a co-ordinated
approach towards ratification of the CWC. However, the need may arise to co-operate more
closely within the framework of the CFSP once the OPCW has been established. First steps of
co-operation might already be taken during the Organisation's preparatory phase.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 219

Bibligography

Council Regulation (EC) 3381/94; OJ 1994, L 367/1 of 31 December 1994.

Council Regulation (EC) 837/95; OJ 1995, L 90/1 of 21 April 1995.
Council Decision 94/942/CFSP; OJ 1994, L 367/8 of 31 December 1994.
Council Decision 95/127/CFSP; OJ 1995, L 90/2 of 21 April 1995.
Council Decision 95/128/CFSP; OJ 1995, L 90/3 of 21 April 1995.
Thomas Jestaedt and Nicolas Baron von Behr, "Die EG-Verordnung zur Harmonisierung der
Exportkontrollen von zivil und militärisch verwendbaren Gütern", Europäische Zeitschrift für
Wirtschaftsrecht 1995, pp. 137-141.
Thilo Marauhn, "Strategische Ausfuhrbeschränkungen gegenüber Drittstatten im Lichte des
Gemeinschaftsrechts. Zur Kompetenzverteilung zwischen Gemeinschaft und Mitgliedstaaten"
(Strategic Export Controls vis-à-vis Third States in Light of Community Law [summary in
English]), Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1994, pp. 779-813.
Thilo Marauhn, "Implementation of the CWC in the EU Context", in: M. Bothe, N. Ronzitti
and A. Rosas (eds.), Chemical Weapons Disarmament - Strategies and Legal Problems
(forthcoming, manuscript available from the author).
Robert J. Mathews, "A Comparison of the Australia Group List of Chemical Weapon
Precursors and the CWC Schedules of Chemicals", CWC Bulletin, Issue No. 21, September
1993, pp. 1-3.
Alexander Reuter, "Exportkontrolle bei Gütern mit doppeltem Verwendungszweck: Die neue
Dual-Use-Verordnung der EU", Neue Juristische Wochenschrift 1995, pp. 2190-2192.
Thomas Stock and Anna de Geer, Chemical Trade Control and Article XI of the CWC, Paper
4 developed by the SIPRI-Saskatchewan-Frankfurt Group on the National Implementation of
the Chemical Weapons Convention (1994).
220 Effective Implementation of the CWC

EC competences with regard to the CWC and its

implementation - Some remarks

Dr. Peter Gilsdorf1

I wish to give some comments on the question of EC and sit competence in relation to the
CWC and its implementation. The question has been touched on by several participants and
especially by Dr. Marauhn (speaking before me) in his paper on the EU Dual Use Regime on
Exports: I agree to a very large extent with what he has said. I would refer also to the paper
which was distributed yesterday.

To sum up:

1. It is generally accepted that EC competences are touched upon by the Convention as

regards the internal market (exchange of goods, competition rules) and the common commercial
policy (exports).

The Commission was originally of the view that the impact on Community matters could
have justified a full participation of the Community (EC) in the Convention. However, leaving
aside the question of competence, it would have been too late in 1991/92 to consider such a
participation because of the advanced state of work: a participation in the Convention by the
Community (together with its Member States) would have meant a total modification of the
structure of the Convention. But there are other ways to ensure respect of EC Treaty rules.

2. The CWC covers mainly matters within the competence of the Member States of the EU,
but it also covers matters within EC competence. If it has been accepted that only the Member
States are to be contracting parties to the CWC, they are nonetheless under a duty to respect EC
Treaty rules. With this in mind, the Commission proposed to the EC Council in July 1992 a
formal decision on the basis of Art. 113 authorising Member States to conclude the Convention
as far as Community matters are concerned subject to certain conditions (see paper I
distributed).

This proposal has not been adopted as such. But the EC Council agreed a declaration
recorded in its minutes recognising: firstly, that the control measures provided for in the
Convention could have an impact on the internal market and the commercial policy, which
would require Member States to apply the Convention in a way compatible with the Community
rules, and secondly, recommending coordination of Member States´ signatures and
ratifications.

3. The EC Member States are under an EC Treaty obligation, flowing especially from its
article 5, to seek to avoid any conflict between the obligations they have under the EC Treaty
and those they have under international law by virtue of the CWC. Avoiding any such conflicts
is, of course, essential for the effective application of the Convention.
It is clear firstly, that all the Member States of the EC should ratify the CWC before it comes

1 Head of the Legal Service of the Commission of the European Communities. This paper is expressing a personal
view.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 221

into force in order to avoid possible export restrictions inside the Community and in respect of
third countries. In this context, it should be recalled that the recommendation contained in the
declaration mentioned above has not been respected until now, but that there is still time to
comply with it.

Secondly, the conference has shown that the implementation of the control system is likely to
give rise to questions of interpretation with the danger of divergences in implementation by
Member States if there is not an effective prior coordination on the Community level. Such
divergences may lead in the future to obstacles for the free circulation of chemicals in the
Community and for trade with third countries with negative consequences for competition
between the producing industries. Consequently coordination between Member States and the
adoption of common positions where necessary is essential.

4. The question of Community (EC) competence must be considered not withstanding the
possible use of instruments of Foreign and Security Policy (CFSP) under Title V of the
European Union Treaty. It should be recalled however, that decisions under CFSP, even if they
are “binding”, are not “enforceable” (the EC Court of Justice exercises no jurisdiction over Title
V acts). An example of a “mixing” of Community Law instruments and those of CFSP exists in
the framework of the Dual Use Regime, mentioned above (which I consider, however, not to
be an optimal solution).
222 Effective Implementation of the CWC

Trade in chemical weapon precursors and production

equipment under the Chemical Weapons Convention

R. Justin Smith
Harvard Sussex Hague Researcher, 1994- 95

My full paper, of which this is an abstract, opens by noting the advantages of an emphasis on
consensual and reassurance-oriented, rather than denial-oriented, measures to prevent the abuse
of trade in chemicals and chemical production equipment. The paper then discusses the legal
and policy considerations relevant to export controls under the CWC, particularly when applied
between States Parties. It notes that the CWC contains two sets of norms. One norm requires
that States Parties not assist chemical weapons activities in other States, including States
Parties; the bar on assistance encompasses scheduled chemicals, unscheduled chemicals, and
equipment. (There are also a set of specific rules, like the bar on trade in Schedule 2 chemicals
with non-States Parties after three years, associated with this norm.) The other norm, which is
in tension but certainly not in opposition to it, is embodied in the Convention's Article XI; it
effectively incorporates the commitment made on behalf of the Australia Group at the close of
the CWC negotiations, and requires that states only deny exports to States Parties if those states
are not in compliance with the CWC. Article XI also disfavors control rules that discriminate
explicitly between States Parties or that needlessly burden trade.
As a device for clarifying the relationship between these two sets of objectives, I propose the
establishment of a committee of the Executive Council charged with discussing policy in this
area. Its tasks would include discussing minimum levels of controls with respect to nonparties;
an ultimate goal of this project might include the establishment of a de facto additional Schedule
of Chemicals to which States Parties would apply export control measures. The committee
would also discuss export controls applicable between States Parties; the paper lists eight
possible reassurance measures applicable between States Parties, many of which, such as
"catch-all" clauses, all states should enact, and others of which States Parties could apply at
their discretion. The proposed committee would also be charged with discussing ways of
preventing control measures from being needlessly burdensome, and would provide a forum in
which to anticipate and prevent disputes before they occur, much as US-Soviet committees
established under Cold War arms control treaties did. The paper also discusses the possible
working methods of this body, and proposes periodic reporting by States Parties on their
export control measures as one possible method of work.
The paper then turns to a discussion of what will happen when disputes actually occur as to
whether a particular export is in compliance with the CWC. The central question here is that of
whose task it is to answer such compliance questions, that of the Organization or of individual
States Parties. The paper concludes that, although the task of resolving compliance questions is
ultimately (and necessarily) that of the OPCW, the Organization should view its task as
principally that of anticipating and avoiding legal disputes, not of resolving them.
I divide export-related disputes into two categories, those in which an exporting state denies
an export, and those in which two states wish to conduct a transaction and a third state
questions whether it complies with the CWC. As to the first category, I suggest that disputes of
this nature may not be frequent, as importing states faced with delays in approval may be able
to find more willing suppliers, and so would be likely to challenge these delays only if they
wished to make a political point. However, it is certainly possible that disputes of this nature
will arise, and I discuss the way in which they might proceed. I emphasize that an exporting
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 223

state may legitimately need to delay an export as part of the process of verifying compliance,
and that a delay of this type need not amount to a compliance judgment. An exporting state with
questions about an export can also make use of the many nonconfrontational devices for
resolving compliance questions provided in Article IX of the CWC. Eventually, once
nonconfrontational dispute-resolution devices are exhausted, the matter might come to a vote of
the Executive Council. My full paper briefly discusses the question of whether a state would
have the option of denying an export license, on national security grounds, despite a negative
vote of the Council. Finally, I briefly discuss the scenario in which two states agree on a sale,
and a third state questions whether that sale is in compliance with the Convention. Once again,
the nonconfrontational processes of Article IX may be very valuable in this situation; it may
also be possible to perform a challenge inspection, or a consensual inspection short of a
challenge inspection (but whose rules are negotiated in the "shadow" of a challenge inspection).

***

This is a brief summary of a longer paper. For a copy of the full paper, please write to Justin
Smith, c/o Chambers of Judge Louis Pollak, 601 Market Street, Philadelphia, PA 19106, or e-
mail me at 74633.565@[Link]. I also hope to make the full paper available soon
through the Harvard Sussex Program's World-Wide Web home page, at [Link]
[Link]/~hsp. The paper of which this is a summary is a work in progress. An
earlier draft was presented at the Third Workshop of the Pugwash Study Group on
Implementation of the Chemical and Biological Weapons Conventions, 19-21 May 1995,
Noordwijk, The Netherlands.
224 Effective Implementation of the CWC

Preparations for receiving OPCW Inspections:

Outreach to chemical industry

Robert J. Mathews*

1. Introduction

Many chemical industry facilities are already accustomed to receiving inspections for a variety
of reasons, including occupational health and safety, storage and handling of dangerous goods,
and environmental monitoring (eg. air quality, waste water treatment). These types of
inspections range from routine regular inspections to inspections requested at ”no notice”, and
are conducted by inspectors from national agencies.

Chemical industry facilities producing chemicals in quantities above appropriate thresholds

will be subject to routine inspections by the OPCW. OPCW inspections will be conducted by
international inspections teams. The objectives of an OPCW inspection of a chemical plant-site
are rather different from the objectives of other types of inspections which the plant-sites are
currently subject to. Hence, the conduct of OPCW Inspections will be different from the other
types of inspections currently performed. A number of the procedures for OPCW inspections
may be different from the inspections which the facility is used to.

Based on our experience with a number of practice inspections, we consider that OPCW
inspections should not be a cause of problems for chemical industry, provided the facilities to
be inspected have been adequately briefed on what to expect and are able to make necessary
preparations (preferably well in advance of the first inspection).

2. Administrative Preparations

There are a number of preparations which a State Party will have to perform for receiving
inspections by the OPCW. A number of such preparations may be characterised legal and
administrative functions. Some such functions will have to be completed within 30 - 60 days
after entry into force, including:

• Approve the list of inspectors proposed by the Technical Secretariat VA II. 1-2

Provide visas for inspectors VA II. 10-14

Designate Point of Entry VA II. 16

It will also be necessary to have developed a general inspection team reception plan shortly
after the date of EIF. There will be a number of administrative arrangements to be made after
the notification of an inspection, including the development of the Inspection Team reception
* Defence Science and Technology Organisation, Australia. The views expressed in this paper are those of the author
and do not necessarily reflect those of the Australian Government.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 225

plan and the nomination of the in-country escort (VA, II, 35), and the domestic travel and
accommodation for inspectors (VA, II, 36). Another related issue is the development a general
inspection team reception plan, and consider the public relations / media issue.

These types of arrangements are discussed in some detail in the PTS Verification Working
Papers. The National Authority may wish to discuss these administrative arrangements with the
facilities to be inspected. However, these administrative arrangements will not be discussed in
detail in this presentation.

3. Preparing chemical industry facilities for receiving inspections

· Explanation of why certain parts of chemical industry are to be

monitored under the CWC

It will be very important to provide a technical explanation to chemical industry why certain
parts of chemical industry are to be monitored under the CWC. This explanation should be
provided to the various chemical industry associations as well as the particular chemical
industry facilities which will be required to submit declarations and subject to inspection.
Chemical industry officials will be much more co-operative once they are familiar with the
objectives of verification under the CWC. A number of background papers are available
(including an Australian background paper). In particular, it should be emphasised to industry
personnel that routine inspections are not based on any suspicion or accusation of violation of
the CWC.

When I first began consultations with chemical industry personnel on industry verification,
and later at the meetings of chemical industry personnel in Geneva, one of the first comments
by industry personnel (in tones ranging from puzzlement to annoyance) was usually along the
following lines:

"We are not producing chemical weapons. We are producing legitimate commercialchemicals
for the good of mankind. Why should our industries be inspected by Chemical Weapons
Inspectors?"

Having reassured the industry official that no-one was accusing his company of producing
chemical weapons, I would then discuss the reasons why certain parts of chemical industry are
to be monitored under the CWC, along the lines of Attachment 2.

Determine chemical industry facilities which will be required

to make declarations

It will be necessary to determine which chemical industry facilities will be required to make
declarations by conducting a survey of chemical industry.

Determine chemical industry facilities subject to OPCW inspections

It will be necessary to determine which chemical industry facilities will be subject to routine
OPCW inspections by conducting a survey of chemical industry. The National Authority will
226 Effective Implementation of the CWC

be able to identify the chemical industry facilities which may be subject to routine inspections,
based on the data it has collected (which will also be used to prepare the initial declarations
which are to be made within 30 days after EIF).

The National Authority should promptly inform those facilities about the type of inspection
regime that they will fall under.

For countries which have yet to conduct a survey of their chemical industry, an initial
indication of which facilities may be subject to inspection can be achieved with the use of
various Chemical Industry Databases, consultation with chemical industry associations.
However, a survey should be conducted without delay. It is anticipated that many countries will
have very few Schedule 2 facilities which will be subject to inspection, whereas a larger
number of countries will have Schedule 3 facilities which will be subject to inspection.

· Familiarity with OPCW verification regime

The most important early preparation for receiving an OPCW inspection is a thorough
understanding of the Schedules of chemicals, and the inspection requirements for Schedule 3
facilities. A number of background papers are available (including an Australian background
paper). The National Authority should ensure that each facility which is subject to OPCW
inspection is fully briefed on the general inspection procedures well in advance of the first
inspection, particularly Schedule 2 facilities.

The information on inspection procedures could be provided by a number of suitable ways,

including one or more of the following, depending on a number of factors, including how
many facilities are involved and their geographical location:

· Letters and documentation from the National Authority;

· Visit by National Authority representative to the facility;

· Seminars, perhaps jointly organised by National Authority and Industry Associations.

Participate in Trial Inspections

Conducting trial inspections (on either a national or regional basis) will provide a very useful
understanding of the preparations that will be needed for the inspections that will be conducted
by the OPCW after entry into force of the CWC.

Without doubt, the conduct of National Trial Inspections (NTIs) since the mid-1980s was
one of the most important processes in the development of the verification provisions for
chemical industry under the CWC. These NTIs have yielded some very useful results,
including the overall conclusion that it would be possible to develop inspection procedures that
provide the necessary assurance that the inspected facility is complying with the treaty, and at
the same time, protect confidential business and technical information.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 227

Early Preparations at facilities subject to OPCW inspection

The National Authority will act as in a liaison / mediator during the conduct of the inspection.
A National Authority representative should visit facility for discussion with facility
management. This could include discussion of any concerns of the facility, including
clarification of any "sensitive" areas. It could also include the development of a draft Facility
Agreement, if appropriate Facility agreements could include, interalia, the extent of access to
other parts of the declared plant site and the procedures for resolution of any disagreement
during a subsequent inspection. Early preparations will be especially important for Schedule 2
facilities. If possible, such preparations should begin well in advance of the notification of an
inspection.

It should be noted, however, that many of the chemical industry facilities that will be subject
to inspection under the CWC (ie. Schedule 3 facilities and Other Chemical Production
Facilities) will only be inspected very infrequently, and will only have a Facility Agreement if
requested by the inspected State Party. We anticipate that many States Parties will choose not to
request facility agreements for Schedule 3 Facilities and OCPFs for a number of reasons,
including:
· the inspection procedures for a Schedule 3 or OCPF will be of shorter duration and will
be less intrusive than the procedures for a Schedule 2 facility, and therefore, for many types of
Schedule 3 facilities (particularly those using well known production technology) there is less
risk of loss of CBI than during the inspection of a Schedule 2 facility;
· the time which will be required in the development of a Facility Agreement (it has been
estimated that it may take several days to prepare a Facility Agreement);
· the fact that chemical production plants are dynamic - a Facility Agreement for a facility
which may be inspected infrequently (perhaps once every 10 years or so) may well be out-dated
by the time of the next inspection.

Preparations after the notification of an inspection

Once a State Party has been notified that a particular facility is to be inspected by an OPCW
inspection team, a National Authority representative should visit facility, without delay, for
discussion with facility management. This will include ensuring current management and other
company personnel are familiar with the objectives of the inspection; the development of
inspection arrangements, including clarification of any "sensitive" areas. Development or
refinement of draft Facility Agreement, if appropriate. This will enable the inspected State Party
and facility management to plan for possible concerns in advance rather than having to deal with
them on an ad hoc basis in the course of inspection activities.

· Prevention of Disputes

As outlined above, the conduct of OPCW Inspections will be different from the other types of
inspections of chemical industry facilities. A number of the procedures for OPCW inspections
may be different from the inspections which the facility is used to. For example, the inspection
team may ask different types of questions (possibly through an interpreter), request samples be
taken for on-site analysis, possibly request access to a facility which contains confidential
technology or information, and perhaps even request that photographs be taken.
There are a number of ways in which the CWC facilitates the minimisation of disputes. For
example, as discussed above, the CWC provides for the negotiation of facility agreements
between States Parties and the OPCW, and also includes ”managed access” provisions for
228 Effective Implementation of the CWC

routine inspections. In addition to these aspects of the CWC text which may facilitate a
diminution in the incidence of disputes, there are a number of other measures which can be
undertaken and implemented prior to entry into force of the Convention. In particular,
prospective States Parties should consider possible potential causes for disputes in advance of
entry into force (preferably during the development of their national implementation
requirements) and attempt to address them, where applicable, in implementing legislation or
through the structures of the National Authority.

4. Concluding Comments

Based on our experience with a number of practice inspections, we consider that OPCW
inspections should not be a cause of problems for chemical industry, provided the facilities to
be inspected have been adequately briefed on what to expect and are able to make necessary
preparations (particularly well in advance of the first inspection).

However, early preparations for OPCW inspections, in particular, identifying facilities which
will be subject to inspection, ensuring that they obtain familiarity with the inspection
procedures, and conducting practice inspections will be of considerable benefit both to the
National Authority and the facilities involved.

Advance Preparations => Industry Co-operation => Everybody Happy

Attachment 1: Why is Chemical industry to be monitored under the

CWC?

A. Industrial chemicals relevant to chemical warfare

To put the relevance of industrial chemicals to chemical warfare agents into perspective, it is
useful to briefly consider the developments in chemical warfare since 1915.

At 1700 h 22 April 1915, near Langemarck in the Ypres river valley in Belgium, there
appeared close to the ground a greyish green mist. Within a few minutes, this unusual cloud
had enveloped the position of the French troops. The soldiers in the trenches began to
suffocate; the poisonous chlorine gas that formed this cloud was burning respiratory organs and
was corroding the lungs. About 180 tonnes of chlorine had been released over a 6 km front
within 5 minutes. It was reported that this gas attack resulted in 15,000 casualties, including
5000 fatalities. Thus marked the beginning of modern chemical warfare.

Towards the end of 1915, chlorine gas was gradually replaced by phosgene, which was used
until the end of the war. In 1917, following the development and issue of gas masks which
could effectively protect troops against chlorine and phosgene, another CW agent "sulphur
mustard gas", which was effective even if troops were masked, was used for the first time.
Several other chemicals were used during World War One (WW1), however, phosgene and
mustard were the most damaging. It is estimated that there were 1.3 million chemical weapon
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 229

casualties in WW1, including over 100,000 fatalities. It is estimated that approximately 80% of
the fatalities were caused by phosgene attacks, and 80% of the non-fatal CW injuries were
caused by mustard gas. Approximately 125,000 tonnes of CW were used in WW1.
In the late 1930s, research to discover better insecticides led to the discovery of highly toxic
organophosphorus nerve agents. The production of the first nerve agent, Tabun, began in 1942
and apparently several thousand tonnes were produced by the end of WW2. In 1944,
production of a second nerve agent, Sarin, commenced.

At the end of WW2, information on these nerve agents became more widely known, and
chemical weapons containing nerve agents were produced by other nations. In the early 1950s,
research into more effective insecticides led to the discovery of the V-series nerve agents. One
member of this group, VX, was produced and weaponised by USA and USSR.

In the late 1950's, another class of CW was investigated, the so-called psychochemical
warfare agents. Apparently only a relatively small stockpile of one such chemical, BZ, was
produced, and was destroyed in the late 1980's.

Natural toxins of plants and animals have long been known, and have been used for warfare
purposes (for example, poisoned arrows) and in medicine for several centuries. Concern has
been expressed that certain toxins may eventually find their way into modern chemical
weapons, especially if they can be produced in sufficient quantities (for example, using
biotechnology). Indeed, one toxin, ricin has been patented as a CW agent and has been
included in Schedule 1. Some toxins have also been used in medical research and as
experimental cancer therapies.

It is interesting to examine the industrial production and legitimate commercial applications of

some of these toxic chemicals which have been used as CW agents (Table 1). The conclusion
of this survey is that a number of very common industrial chemicals can also be mis-used,
either as CW agents per se, or as precursors (feedstock) in the production of CW agents.

B. Chemical production processes

It is also relevant to discuss the types of chemical processes that are involved in the
production of CW agents.

For example, as outlined in Table 2, the production of Sulphur-Mustard involves

condensation and chlorination processes. The production of Sarin nerve agent involves
phosphorylation, alkylation, chlorination, fluorination and esterification. The production of BZ
psychochemical agent involves esterification. These same processes are also very commonly
employed in the production of a large number of legitimate commercial chemicals, including
those shown in Table 2.

Unfortunately, from the point of view of the monitoring of the chemical industry under a
CWC, the types of production equipment suitable for these chemical processes are similar for
production of either CW agents or commercial chemicals. This is especially the situation with
"Multi-Purpose" Plants (MPPs), in which the reactors, associated pipe-work, pumps and
valves are typically constructed from a corrosion resistant material (for example, Hastelloy or
Stainless Steel) to enable the plant to be used for many different types of reactions, including
those either consuming or producing corrosive chemicals (for example, chlorinating and
230 Effective Implementation of the CWC

fluorinating chemicals). The process control unit is typically computer controlled, and is
designed to be flexible, such that the reaction conditions can be readily reprogrammed to allow
different processes. Effluent control systems and safety features are usually designed and built
into MPPs so that they can be for used for the production of chemicals with a range of
toxicities, without introducing risks to the occupational safety of plant workers or to the
environment.

Thus while it may have been true once that a plantsite producing CW agents could be
distinguished by its safety features and effluent control systems, with the increasingly stringent
environmental regulations for commercial industry, this is no longer the case. A further
complicating factor, from the CWC verification viewpoint, is that a typical plantsite (or
chemical complex) may contain many MPPs, and perhaps also contain dedicated plants for
producing large quantities of basic feedstock chemicals (including, in many plant-sites, some of
the CW agent precursors listed in Table 1).

Therefore, we must conclude that within commercial chemical industry, there are many
chemical production plants which are not involved in the production of any of the chemicals that
have been used for chemical warfare purposes (for example, those listed in Table 1) which
would be capable of producing at least some of those chemicals. In the case of precursor
chemicals, many plants could produce some of them without any modification. In addition,
some MPPs could be used, with minor modification, for the production of CW agents. For
example, some organophosphorus pesticide production plants would fall into this category.

Furthermore, involvement of industry in the production of chemical weapons is not just a

theoretical possibility. Historically, parts of the chemical industry have played a major role in
CW production programs, for example, the use of industrial dye production factories for the
supply of chlorine, phosgene and mustard agents during WW1. Indeed, it was only because of
the rapid growth of the chemical industry in Europe in the latter part of the 19th century and
early 20th century that chemical weapons were able to be used on such a massive scale in
WW1. And industry involvement did not stop then. Even recently (that is, until the late 1980s),
parts of chemical industry were supplying key precursors (in some cases inadvertently) for the
production of CW agents in the USA, former USSR and Iraq. In addition, the Iraqi CW
production program used equipment originally designed for the production of commercial
pesticides.

It follows that at least certain parts of the civil chemical industry, including those parts of
industry that produce commercial chemicals that may be used for CW purposes, and those parts
of chemical industry that could be readily converted for the production of CW agents or their
precursors, will need to be monitored in order to:

(a) deter the covert production, in chemical industry, of chemicals which are intended for CW
purposes; and

(b) provide the necessary confidence that States Parties to the CWC are complying with their
obligations under the CWC, and in particular, are not using their commercial chemical industry
for the clandestine production of CW agents.

The objective of the Geneva negotiators was to develop a verification regime to achieve the
above objectives which is effective, affordable, and has an acceptably small impact on the
operations of the chemical industry. An indication of the challenge facing the negotiators in the
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 231

development of a suitable verification system is obtained by comparing the production

quantities of some of the chemicals listed in Table 1 with a "militarily significant quantity" of
CW agent, which is generally acknowledged to be in the order of 100 to 500 tonnes.

Table 1

CHEMICAL INDUSTRIAL APPLICATIONS WORLD PRODUCTION

(tonnes per year)

Phosgene Polyurethanes, Herbicides 3.10 6

Chlorine Plastics (PVC), Paper production 30.10 6

Carbon monoxide Methanol, Phosgene, Acetic acid 3.10 6

Sulphur mustard Nil Laboratory quantities

Thiodiglycol Printing solvent, Oil additive 5000

Sulphur chlorides Rubber vulcanizer, Lubricant additives 150.10 3

Ethylene Petrochemical feedstock, Plastics 35.10 6

Nitrogen mustard Anticancer therapy 0.005 - 0.01

Thionyl chloride Pesticides, Herbicides, Dyes 100.10 3

Ethanolamines Detergents 200.10 3

Tabun Nil Laboratory quantities

Phosphorus oxychloride Pesticides, Oil additives, 80.10 3

Flame retardants

Dimethylamine Rubber production, Solvent 250.10 3

Sodium cyanide Mineral extraction, Electroplating 140.10 3

Sarin Nil Laboratory quantities

Trimethyl phosphite Insecticides, Flame retardants, 12 000

Dimethyl methylphosphonate Flame retardants, oil additives 2000

Hydrogen fluoride Glass etching, Petroleum processing 1.2.106

232 Effective Implementation of the CWC

BZ Pharmaceutical intermediate 0.5 - 1

Benzilic acid Pharmaceutical intermediate 1-5

3-Quinuclinol Pharmaceutical interrmediate 0.5 - 1

Table 2

PRODUCTION CW AGENTS TYPICAL COMMERCIAL

PROCESS PRODUCTS

Chlorination Sulphur-mustard Insecticides

Nitrogen-mustard Herbicides
Lewisite Polymers, Dyes
Sarin Pharmaceuticals
VX Solvents

Fluorination Sarin Polymers, Solvents

Soman Pharmaceuticals
Pesticides, Herbicides
Refrigerant Gases
Anasthetic Gases

Esterification Sarin Insecticides

Tabun Solvents
BZ Flavours
Pharmaceuticals

Phosphorylation Sarin Insecticides

Tabun Flame Retardants
VX Oil Additives

Alkylation Sarin Flame Retardants

Soman Oil Additives
VX Petrochemicals
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 233

Attachment 2 Background Information for Chemical Industry

Schedules of chemicals - (See Annex of Chemicals - Part B)

Schedule 1 contains chemicals that are deemed to pose a high risk to the purposes of the
CWC, but have very limited, if any, commercial applications. This Schedule includes nerve
agents, (including Tabun, Sarin and VX, and their homologues or "family members"), nerve
agent precursors for binary chemical weapons, and blister agents (including Sulphur mustard).

Schedule 2 contains chemicals that are deemed to pose a significant risk to the purposes of the
CWC. This Schedule includes toxic chemicals that could be used as chemical warfare agents
(for example, Amiton, which was developed as a pesticide in the 1950s, but found to be too
toxic for that purpose), and key precursors to the chemicals in Schedule 1. Some of these
chemicals have limited commercial applications. For example, dimethyl methylphosphonate is
used in the production of flame retardants and lubricating oil additives, but is also a key
precursor for the production of Sarin and related nerve agents.

Schedule 3 contains other chemicals that are considered to pose a risk to the purposes of the
CWC, including "dual purpose" chemicals such as phosgene (which was used as chemical
weapon in World War 1, but which currently has large commercial applications in the
production of a range of products including plastics and pesticides), and other precursors for
chemical warfare agents, for example, trimethyl phosphite, which is a precursor for insecticides
and flame retardants, and also a precursor for nerve agents.

Inspection Requirements for Schedule 3 facilities - See Verification Annex,

Part IX, paragraphs 12-25 (VA, IX, 12-25)

Any plant site producing more than 200 tonnes of Schedule 3 chemicals will be liable for
inspections by the OPCW. The facilities to be inspected will be chosen by the OPCW by a
process of random weighted selection. No plantsite will receive more than two routine
inspections in any one year. The combined number of inspections in a particular State Party
shall not exceed three plus 5 per cent of the total number of Schedule 3 facilities and OCPFs, or
20 inspections, whichever of these figures is lower.

A State Party will be notified by the TS of the inspection not less than 120 hours before the
inspection team arrives at the plant site to be inspected. The period of the inspection will not be
more than 24 hours.

The focus of the inspection will be the declared Schedule 3 plant and related areas such as
storage and waste handling areas. If the inspection team requests access to other parts of the
plantsite to clarify ambiguities, the extent of access will be agreed between the inspection team
and the inspected State Party. Access to records may be provided only with the agreement of
the inspected State Party. Sampling and on-site analysis may be undertaken to check for the
absence of undeclared scheduled chemicals.

In the context of the impact of inspections on normal industry operations, it must be

remembered that:
234 Effective Implementation of the CWC

- the probability of any particular facility being chosen for inspection will be very low. The
combined number of inspections for Schedule 3 and Other Chemical Production Facilities
(OCPFs) shall not exceed three plus 5% of the total number of Schedule 3 and OCPFs
declared. Thus, for a State Party with 200 such plant-sites, the maximum number of
inspections per year is 13 - in practice, the number of such inspections could be expected to be
much less than the maximum;

• the inspections will have a short duration (maximum 1 day) and be non-intrusive. The
inspection procedures clearly spell out the non-intrusive nature of the inspection and the time
limit; and

• the inspections will not disrupt normal operations at the facility (refer to above comments on
Inspection Procedures).

It is noted that these inspection procedures were followed in the Trial Inspection that was
conducted at a Melbourne chemical industry facility as part of the Regional Workshop in
August 1991 (see Attachment 2).
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 235

Attachment 3: Summary Report of Australia's National Trial Inspection

of a Schedule 3 Facility

1. Introduction

As part of Australia's Chemical Weapons Regional Initiative, a technical workshop was

conducted in Melbourne in August in 1991, which included a Trial Inspection of a "Schedule 3
/'Other Relevant' Facility" (under the eventually agreed Convention, the inspected facility is an
OCPF). Participants from 16 countries in South East Asia and South Pacific observed the
conduct of the inspection. This was conducted along similar lines to the procedures contained in
Parts VIII and IX of the Verification Annex. A report of the NTI was presented to the
Conference on Disarmament on 20 February 1992 (CD/CW/WP.385).

2. Conduct of the Inspection

As discussed in CD/CW/WP.385, the inspection consisted of

Initial Briefing by Facility Management

Orientation Tour of Facility

Development of the Inspection Plan

Conduct of the Inspection, and

Concluding Conference with the Facility Management

The initial briefing, orientation tour and development of the inspection plan each took
approximately twenty minutes (that is, one hour in total). These activities were facilitated by a
site plan made available by the inspected facility. The actual inspection took approximately 1.5
hours, and the analysis of samples approximately 2.5 hours.

The inspection included walking through selected plants, observation of the operations taking
place, requesting several samples from standard sampling points and waste effluent plant, and
analysis of the samples "on-site" to check for the absence of undeclared Scheduled chemicals
using "negative proof" methods. In particular, a hand-held ion mobility spectrometer (IMS)
with a spectrum display was used to give an indication of contents of storage containers and to
assist in the selection of samples for chemical analysis. In the course of the inspection, 7
samples were collected and analysed. Samples were analysed with a mobile Gas
Chromatograph - Mass Spectrometer (GC-MS) system, using the approach described in
CD/CW/WP.353, namely the GC-MS was used as a rapid screening technique to indicate the
presence of Scheduled chemicals, without providing information on chemicals not related to the
CWC.

In the course of the inspection, the inspectors were given sufficient access to gain an overall
impression of the facility and the types of activities taking place to enable them to be satisfied
that the company was not involved in production of chemicals that would be in violation of the
236 Effective Implementation of the CWC

Convention, but without the need for in-depth discussions of technical details which may be
confidential. The company was satisfied that the inspection team had taken the necessary
measures with regard to the protection of confidential information. In addition, the on-going
production was not impeded.

3. Conclusions from the NTI

It was concluded that, provided the inspection team included an appropriately trained and
experienced chemical engineer, chemist and chemical analyst with appropriate equipment, that
an inspection of this type could be performed in less than one day, and the inspection team
could be satisfied that the company was not involved in production of Scheduled chemicals that
would be in violation of the Convention. Clearly, on-site analysis for the presence of Scheduled
chemicals using negative proof methods is necessary for this type of inspection to be concluded
within one day, and also to satisfy the confidentiality concerns of the inspected facility.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 237

Australia’s import and export licensing arrangements

under the CWC

Robert J. Mathews*

1. Introduction

There are a number of import and export obligations under the CWC. These include the
specific transfer obligations related to chemicals in Schedules 1, 2 and 3. There are also the
General Obligations for a State Party to undertake never under any circumstances to transfer
chemical weapons to anyone or to assist, encourage or induce, in any way, anyone to engage in
any activity prohibited to a State Party.

Most States (if not all) will already have customs regulations in place granting powers of
search and seizure to customs officials in respect of prohibited and restricted goods. Many
CWC States Parties will be able to utilise existing customs law and supplement it with
additional regulations, rather than developing new and specific legislation to cover the
implementation of obligations under the CWC.

This paper presents the approach which is being taken by Australia in meeting its various
transfer obligations under the CWC, and discusses the means by which Australia will ensure it
is also complying with the obligations under Article XI.

2. Specific Transfer Obligations under the CWC

The Specific Transfer Obligations under the CWC related to the chemicals in Schedules 1, 2
and 3 are provided in the Annex.

In Australia, imports of chemicals listed in Schedule 1 will be controlled by changing

Australia’s existing Customs (Prohibited Imports) regulations. The changes to the regulations
will include the requirement for the Chemical Weapons Convention Office (CWCO) to notify
the Technical Secretariat at least 30 days before the transfer is to take place.

Australia's existing export licensing system on goods and technology is maintained under the
authority of the Customs Act 1901 through the Customs (Prohibited Exports) Regulations.
These regulations will be amended to control exports of all CWC Scheduled chemicals.

The monitoring of imports and exports of Scheduled chemicals, and the compilation of data
on aggregate national data on the quantities of Scheduled chemicals which are imported and
exported for declaration purposes (VA VI Paragraph 2, VA VII Paragraph 1, VIII, Paragraph
1) will be undertaken by the CWCO in co-operation with the Australian Customs Service and
the Australian Bureau of Statistics. This process will be facilitated by the adoption of changes to

* Defence Science and Technology Organisation, Australia. The views expressed in this paper are those of the author
and do not necessarily reflect those of the Australian Government.
238 Effective Implementation of the CWC

the Harmonised Commodity Description Encoding System (HS).

3. General Transfer Obligations under the CWC

The General Obligations of the CWC, as specified in Article I, requires each State Party to
undertake never under any circumstances to transfer chemical weapons to anyone (Article I,
Paragraph 1(a)) or to assist, encourage or induce, in any way, anyone to engage in any activity
prohibited to a State Party (Article I, Paragraph 1(d)).

Consistent with this obligation, Australia currently has 59 CW agent precursors under export
licensing measures (including the 54 chemicals known as the ”Australia Group List”). These
export licensing measures were developed in Australia to ensure responsible suppliers of
chemicals and chemical technology do not contribute to chemical weapons programs. These
measures were developed in the mid-1980s, following evidence that several countries, most
notably Iraq, were developing such weapons based on supplies from international chemical
trade.

Several delegations to the OPCW PrepCom in The Hague have expressed the view that the
transfer provisions related to chemicals contained in CWC Schedules are sufficient to satisfy a
State Party's obligations under the CWC not to assist CW programs. However, paragraph 1(d)
of Article I (General Obligations), together with the definition of ”Chemical Weapons”, makes
clear that a State Party is not complying with its CWC obligations if it exports any chemical
with the knowledge that the chemical is to be used as part of a CW proliferation program.

The definition of ”Chemical Weapons” in Article II, paragraph 1 is based on the intended
purpose of a chemical. In other words, any toxic chemical or precursor chemical is regarded as
a chemical weapon unless it has been developed, produced, stockpiled or used for purposes not
prohibited by the Convention. This is a very broad definition which is very clear - as far as the
CWC is concerned, any toxic chemical or any of its precursors is a chemical weapon except
where intended for purposes not prohibited under the CWC. Thus the definition covers literally
thousands of chemicals in addition to those contained within the CWC Schedules. For example,
in the case of production of nerve agents, it would go so far as to cover phosphate rock if that
that material was being sought with the ultimate objective of using it to produce nerve agents.

Each State Party which exports chemicals should be aware that there are other chemicals in
addition to those listed in the CWC Schedules which a recent CW proliferator sought for CW
purposes. In particular, Iraq sought several chemicals including sodium cyanide for Tabun
production and sodium fluoride for Sarin production. Each State Party supplying such
chemicals would need to be assured that it was not inadvertently supplying a CW program by
being familiar with such exports.

In our view, the Australia Group list of 54 chemicals which, as discussed above, has largely
been arrived at through practical experience of the chemicals sought for a CW program,
provides a useful focus to increase a State Party’s awareness of the potential end-use of their
chemical exports, and thus of their specific compliance obligations under the CWC.

However, it is not possible to identify and describe, for regulatory purposes, all items
(including non-listed chemicals, production equipment, ancillary support equipment) that might
be used in a CW program. Some items might be identified, but, because of their widespread
commercial application, it would be impractical to include them in regulations. Once in
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 239

regulations, all exports of these items would require a license, which would create an
unnecessary administrative burden on the licensing authority as well as for industry.

To address this obligation under the CWC, the Weapons of Mass Destruction (Prevention of
Proliferation) Act 1994 has been developed and recently enacted in Australia. This Act will
provide the Government with the authority to stop such items from being exported to a
destination considered of being a CW proliferation risk, but will avoid imposing an
unnecessary administrative burden on the licensing authority or industry.

4. Compatibility of Australia’s Export Licensing Arrangements with Article XI

A number of delegations in the PrepCom have expressed concerns that licensing measures
may discriminate against developing countries. It may be useful to briefly review Australia’s
export licensing arrangements in the light of Articles I and XI of the CWC.

In all but a small number of cases, Australia’s export licensing system allows chemical trade
to proceed without delay or other hindrance. Where a real concern exists, based on clear
evidence, an export is denied, but the actual proportion of exports denied in relation to overall
chemical trade is extremely small. Such measures support the CWC obligation not to assist CW
manufacturing anywhere, in any way.

Australia’s licensing measures do not discriminate against developing countries, but only
against the manufacture of chemical weapons. In fact, they are of most benefit to developing
countries, because they are the ones most vulnerable to a CW attack, as recent CW proliferation
pressures have been most concentrated in the Third World.

Australia is committed to the provisions of Article XI, freely and not grudgingly, and has
ratified the CWC in the full understanding that they will be binding on Australia from the time
the CWC enters into force. While recognising that this Article has particular importance for
developing countries, Australia itself is a free trading country committed to the fullest possible
exchange of products and technology - Australia’s well-being is dependent on the greater
internationalisation of economic activity, especially in building further mutually-beneficial
engagement with the developing world.

Australia therefore intends to comply with the letter and spirit of Article XI. Australia is
actively preparing to meet all of its obligations under the Convention immediately upon its entry
into force, and Article XI is no exception to this.

Australia already trades, invests and exchanges technology with developed and developing
countries alike. It does not seek to reserve chemical products or technology for any particular
group of countries. Where it has license requirements for chemical exports, such as those
developed in response to Iraq’s massive chemical weapons program, these are applied without
discrimination to any destination, regardless of its economic status. A license requirement is a
simple check that an export will not be exploited for CW manufacture, as happened tragically in
the case of some exports to Iraq. The alternative to this simple procedure would be a practice
that knowingly condoned assistance to the production of chemical weapons.

Export licensing is not a barrier to the development of legitimate chemical industries in

developing countries. Real constraints on such development do exist, for example in the
240 Effective Implementation of the CWC

standards area or in the availability of relevant information. Australia believes that the CWC
provides a constructive opportunity to address these constraints, and has recently provided
discussion papers to the PrepCom discussing, inter alia, the development of an Article XI
database.

5. Concluding Comments

Export licensing arrangements applied to scheduled chemicals, together with appropriate

monitoring of other items (including non-scheduled CW precursor chemicals and equipment
items) which may be destined for a CW program, will play a major role in the effectiveness of
the CWC. All States Parties will need to give due attention to their export licensing
arrangements to ensure compliance with their obligations under the CWC.

Annex - Specific Transfer Obligations under the CWC

Schedule 1 (VA, VI, Paragraphs 3 - 6)

A State Party may transfer Schedule 1 chemicals outside its territory only to another State
Party and only for research, medical, pharmaceutical or protective purposes.

Chemicals transferred shall not be retransferred to a third State.

Not less than 30 days before any transfer to another State Party both States Parties shall
notify the Technical Secretariat of the transfer.

Each State Party shall make a detailed annual declaration regarding transfers during the
previous year. The declaration shall be submitted not later than 90 days after the end of that year
and shall for each Schedule 1 chemical that has been transferred include the following
information:
(a) The chemical name, structural formula and Chemical Abstracts Service registry
number, if assigned;
(b) The quantity acquired from other States or transferred to other States Parties. For
each transfer the quantity, recipient and purpose shall be included.

Schedule 2 (VA, VI, paragraphs 31 and 32)

Schedule 2 chemicals shall only be transferred to or received from States Parties. This
obligation shall take effect three years after entry into force of this Convention.

During this interim three-year period, each State Party shall require an end-use certificate, as
specified below, for transfers of Schedule 2 chemicals to States not Party to this Convention.
For such transfers, each State Party shall adopt the necessary measures to ensure that the
transferred chemicals shall only be used for purposes not prohibited under this Convention.
Inter alia, the State Party shall require from the recipient State a certificate stating, in relation to
the transferred chemicals:

(a) That they will only be used for purposes not prohibited under this Convention;
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 241

(b) That they will not be re-transferred;

(c) Their types and quantities;
(d) Their end-use(s) ; and
(e) The name(s) and address(es) of the end-user(s).

Schedule 3 (VA, VI, Paragraphs 26 - 27)

When transferring Schedule 3 chemicals to States not Party to this Convention, each State
Party shall adopt the necessary measures to ensure that the transferred chemicals shall only be
used for purposes not prohibited under this Convention. Inter alia, the State Party shall require
from the recipient State a certificate stating, in relation to the transferred chemicals:
(a) That they will only be used for purposes not prohibited under this Convention;
(b) That they will not be re-transferred;
(c) Their types and quantities;
(d) Their end-use(s); and
(e) The name(s) and address(es) of the end-user(s).

Five years after entry into force of this Convention, the Conference
shall consider the need to establish other measures regarding transfers of
Schedule 3 chemicals to States not Party to this Convention.
242 Effective Implementation of the CWC

CWC Implementation: Inspection requirements and

lessons from UK practice inspections at industrial
and government sites

Dr John R. Walker
Arms Control and Disarmament Research Unit Foreign and Commonwealth Office, London

Introduction

1. Since 1988 the United Kingdom has conducted, or participated in, some twenty national or
multinational CBW practice inspections at a wide range of military and industrial sites. In
addition, a further twenty "walk through, talk through" visits have also been held at a similarly
diverse range of facilities. Although all but six of the practice inspections were conducted at
military or government sites, many of the lessons learned are equally applicable in civil
chemical plants.

2. This paper will draw on the UK's extensive experience with CBW practice challenge
inspections: between October 1988 and April 1990 six practice inspections were conducted at a
representative sample of sensitive government facilities; two joint inspections were held with
Germany in May and June 1990; a challenge inspection at a large multi-purpose chemical plant
took place in January 1991; UK nationals participated in a multinational inspection in Germany
in 1991; a special inspection was arranged at a nuclear site in August 1992; four inspections
were performed in the pharmaceutical, biotechnology and vaccine industry between April 1993
and April 1994 as part of the UK's work on BW verification; two UK nationals participated in
a joint Dutch-Canadian BW trial inspection in May 1993; and four inspections have been held at
MOD facilities since October 1994 as part of the UK's CWC implementation preparations.
Plans are in hand to conduct a routine inspection at an industrial site. The author has
participated in all but one of these inspections, and in nine of them as chief inspector. In
addition to the twenty or so challenge inspections, a routine inspection was conducted at a
schedule 2 plant site in 1989.

Common issues

3. Over the years common lessons have emerged repeatedly. Many of these apply equally to
routine inspections although the lessons were learned during challenge inspections. The main
substantive difference between the inspection types is the scope and depth of the inspection
team's enquiries. A CW or BW inspection should be viewed as an investigation whose
objective is the collection of information. This is needed to build a picture of the work
underway at the facility and establish whether it represents undeclared and/or non-compliant
activities. In this regard the inspected state party should in practice see an inspection as a co-
operative exercise between itself and the inspectors. (Indeed the current training objectives for
inspectors include assisting the inspected State Party to demonstrate compliance.) The common
purpose is to ascertain the facts which will enable the inspectors to determine with confidence
that the declared facilities and activities are as claimed; and, equally importantly, confirm the
absence of any potentially non-compliant activities. The nature and scope of the information
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 243

required, or sought, depends on the site, the type of inspection and the nature of the co-
operation provided.

4. As the focus for this seminar is implementation, the rest of this paper will discuss the
principal issues of immediate interest to both industry and National Authorities. These include:
extent and nature of preparation; briefing; regulatory framework; and conduct of inspections.
The key parts of the CWC's Verification Annex are Parts II (General Rules); VII (regime for
schedule 2); VIII (regime for schedule 3) and Part X (challenge inspection). Reference will be
made to these in passing.

Extent and nature of preparation

5. Schedule 2 and 3 facilities will be inspected; however, the probability for most countries
that these and other civil chemical plants will be subjected to challenge is low. In routine
inspections only designated parts of the plant site are the focus for inspection activities.
However, it is important to remember that inspectors are entitled to request access to other parts
of the plant site. Access to such areas in a schedule 2 plant for example must be granted in
accordance with the obligation to provide clarification pursuant to Part II of the Annex, and in
accordance with the facility agreement; or, in the absence of such an agreement, in accordance
with the managed access provisions in Part X. Under the regime for schedule 3 the extent of
such additional access is subject to agreement between inspectors and Inspected State Party.
This has important implications for site preparation.

6. A key element in site preparations is a reception plan. This should outline in general terms
key principles governing the extent and nature of access that the site is able and willing to
provide. The plan must identify, where possible, risks to commercially sensitive information
such as those that might arise from sight of particular equipment configurations or from
samples collected from specific locations. On those sites where a facility agreement exists many
of these problems will be addressed. However, contingency arrangements are essential for
dealing with inspector requests for access to other parts of the site. It is much better to have
identified possible solutions ahead of time rather than cope with a pressing problem during the
inspection itself.

7. However, the fluid nature of the chemical industry - changing products and markets -
makes it difficult to determine concrete procedures in advance. Today's commercialsensitivities
may not apply in five year's time.

However, some general principles could be identified and up-dated as required. In the end it
is for the individual company to judge whether the potential risks to confidentiality merit
detailed preparations. In a schedule 2 plant there may well be a case since it could be inspected
up to twice a year. For other chemical producers, there is probably little point in devoting
resources to developing detailed reception plans.

8. In some respects preparations for in-coming CWC inspections are similar to emergency
planning to deal with major site incidents. Designated personnel are given clear responsibilities
and duties; procedures are also identified for closing down hazardous operations in the event of
fire or spillages. It may therefore be appropriate to make use of existing machinery to cope with
the exigencies of a CWC inspection. This might entail adding a few further duties to designated
individuals; or the addition of some new Standing Operating Procedures to existing manuals or
guidelines. Indeed it may be best to appoint a "compliance officer" whose principal task is to
244 Effective Implementation of the CWC

ensure that both declarations submissions and planning for inspections are conducted
efficiently.

9. That said, it will be essential to identify a few key individuals whose main responsibilities
will be to deal with an inspection from start to finish ie from the moment the team arrives at the
front gate to the time when it leaves. At least two individuals will be required in the event that
the inspection team decides to split into two sub-teams. Such persons need to come from
middle management as they combine both a detailed knowledge of the site and its activities with
the necessary authority to take decisions on the spot in the event of any problems. Involvement
of the site security and safety officers is also essential. It is also a good idea to identify someone
who understands the site record keeping systems and who can access central computer and
written records. In short, a small core team of site escorts need to be involved throughout the
inspection: other personnel become involved as required in order to deal with particular
enquiries or arrange specific access. Such involvement may only entail a few minutes at most.

10. A central control point plays an important role in ensuring the smooth running of the
inspection. It helps keep track of the sub-teams, arranges for personnel to be made available,
track down documentation and generally provide administrative support for the duration of the
inspection. Such individuals need to be identified before hand. However, staffing such a
control point may well prove too difficult for many companies.

Briefing
11. Paragraph 37 of Part II of the Verification Annex requires that the inspected site provide a
briefing "with the aid of maps and other documentation as appropriate ... on the facility, the
activities carried out there, safety measures and administrative and logistic arrangements." This
briefing must not last longer than three hours. The briefing should be in two parts: the first on
the site itself, including the administrative matters such as identification of a room for the
inspectors and meal arrangements. The site safety brief should come at the end.

12. The briefing on the site's activities should be as open as possible. Full use should be
made of any marketing material such as product lists, recruitment brochures, company reports
and other printed PR material. It will also be important to mention the regulatory framework
governing the activities on the site. This will be discussed in greater detail below. All main
manufacturing and support facilities should be identified on maps which should be as accurate
as possible. Never underestimate the capacity of inaccurate maps to cause confusion at best and
suspicion at worst. If possible detailed aerial photographs are also useful in helping the
inspectors to orient themselves and identify the major plant sites and their relationship to each
other and the outer boundary. Time should be taken to explain the role of the site and where it
fits into a wider corporate structure if appropriate. If there are any areas down for maintenance,
re-building or new plants being commissioned, these should all be identified. If there are any
areas where direct physical access is likely to be difficult for safety reasons, then these should
be identified immediately.

13. In the case of the regular routine inspections much of this information would probably
only need to be provided once. Appropriate up-dates could be given at subsequent visits. That
said, in the event of a challenge inspection the key principle should be that as much data as
possible ought to be provided. It is important to ensure that the information is presented clearly
and logically; any apparent contradictions or ambiguities will be identified by the inspectors. If
graphs are used, hard copies should be made available.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 245

14. The briefing is important for three mains reasons. First, it sets the tone for the inspection
and as such is a golden opportunity for the inspected site. A spirit of co-operation and openness
at the outset can help ensure the inspection gets off to a good start. It should be recalled here
that the inspectors are tasked to comment in their report on the nature and extent of the inspected
State Party's cooperation, and the extent to which this enabled the inspectors to fulfill their
mandate.

15. Second, a detailed briefing can pre-empt some inspectors' questions and thereby prepare
them for what they will actually encounter once out on the site itself. The ability to relate
information provided in the briefing to reality on the ground helps build confidence.
Remember, that if inspectors have to "fight " to obtain every scrap of information, they will
actually be on-site for much longer and the process itself will be much more confrontational.

16. Third, effective briefings can also contribute to the avoidance of ambiguities once out on
the site. If time is taken to explain particular problems or aspects of plant layout and operation at
the outset, the chances of any ambiguities leading to suspicion are diminished. This is
especially important in a challenge inspection where it is essential to avoid creating false
impressions. These can accumulate over the 84 hours and present a picture of willful
obstruction which might be construed as an attempt to conceal potentially non-compliant
activities.

Regulatory framework
17. What is meant by the term "regulatory framework" and why is it of potential significance
for the conduct of CW inspections, whether routine or challenge ? The regulatory framework
essentially means the systems of health, safety, environmental, licensing, Good Manufacturing
Practice (GMP), Good Laboratory Practice (GLP), Quality Assurance (QA) and Quality
Control (QC) regulations and procedures which govern activities in the chemical and
pharmaceutical industries. Companies must adhere to a wide range of regulations and operating
procedures put in place by national governments and agencies. Such procedures often require
the retention of complex and detailed records to demonstrate compliance. This provides a very
useful information resource which can prove helpful during the conduct of an inspection. The
principal regulations as they affect site operations should be mentioned in the site briefing.

18. The information required by these frameworks proved very useful during the UK civil
CBW inspections. Records kept under these diverse regulations offers collateral information
which builds confidence that activities are as declared; or that there are no non compliant
activities being concealed. If the inspectors are aware of what type of information is required by
national law, they can request access to it and use it as part of a wider audit trail to check
consistency.

19. On their own the documents do not provide cast iron assurance, but taken in conjunction
with other factors such as observation and interviews, they do provide confirmatory evidence.
These records systems are used primarily for cross referencing, auditing and checking. In the
UK, for example, the Control of Substances Hazardous to Health Regulations, issued under
the 1974 Health and Safety at Work Act allows CWC inspectors to check documents which
describe the hazards posed by any chemical held on site. Normally detailed assessments of the
individual and collective risk must be provided for each substance present in each area or
building. Similar rules and regulations exist in most western countries. An additional advantage
246 Effective Implementation of the CWC

of these documents is that they are often a lot less commercially sensitive than other site
records.

20. Information held under these various regulations are of particular importance during
challenge inspection. They can provide a powerful body of supporting evidence to account for
the design and use of facilities and reassure inspectors that no illegal CW activities are being
concealed.

Conduct of Inspection
21. Parts VII and VIII of the Verification Annex describe the inspection aims and inspection
procedures that will apply to Schedule 2 and 3 plant sites. There is much common ground
between them, although there are some important differences. In the context of a schedule 3
plant the inspection will be little more than a "walk through, talk through". This in essence
means that the inspectors will try to follow the production process of the declared chemical. The
ability to conduct an in-depth inspection or examine other areas of the plant will be limited by
the time factor - 24 hours.

22. This paper has argued that there are certain common features to inspections regardless of
context: methodologies and procedures are essentially the same. Much the same applies to
escorting requirements and the ability to grant access. Even on the most sensitive sites a
considerable amount of information and access can be provided without putting either national
security or commercial information at risk. It is counter-productive to adopt a restrictive
approach where there is no compelling reason to do so. This will only aggravate the inspectors,
and if they discover that there are no genuine sensitivities they will become suspicious. When
this happens the site personnel have to work harder to regain trust.

23. Inspectors will ask a large number of questions as they go around the site; in many cases
the answers will be simple or straightforward. If a response requires further consideration or
the information is not readily to hand, it is far better to say so rather than give an inaccurate or
incomplete response. This can lead to serious misunderstandings and further complications.
Inspectors will be understanding if they are told that time will be required to provide the
information; and if the question is not fully understood it might be better to have it in writing.
Furthermore, it is essential to ensure that the question is properly understood: answering the
wrong question or providing half an answer wastes time and causes potential problems. Such
tactics are important in routine inspections, but they can be of crucial significance during a
challenge inspection. In this context it should be noted that an extra complication might be that
interpretation is required. This can lead to further pressure on inspection time, but the delay can
help ensure that answers must be carefully considered.

24. It also helps to try to anticipate inspectors' requests, but without trying to steer the
conduct of the inspection too overtly. The role of National Authority expertise will be crucial
here. Experience from previous inspections, knowledge of the CWC as well as awareness of
the requirements for CW production and handling should help ensure the smooth running of the
inspection. It is much better to offer an alternative means of addressing the inspectors concerns
or questions rather than simply refusing to respond. A pro-active approach should be adopted.
If the inspection is viewed as a cooperative exercise, then a good deal of aggravation can be
avoided. Even in a challenge inspection, where the tensions will be higher given the accusation
of non-compliance, it is much more productive to adopt a co-operative rather than an
obstructive approach.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 247

Conclusion

25. One of the key questions that needs to be addressed by industry is the extent to which it is
willing to devote resources to the development of detailed reception plans to host in-coming
CWC inspection teams. For those companies producing, processing and consuming schedule 2
and 3 chemicals, some preparation will be essential. This need not be extensive, and there is
certainly absolutely no need to shut down plant operations for the duration of an inspection; this
is quite unnecessary. Preparation, will help reduce the risk of serious problems arising during
the inspection.

26. In the UK we assess that the likelihood of a challenge inspection on a chemical plant is
low and there may be no point in making detailed preparations, especially given the transient
nature of production in the chemical industry. Sensitivities and plants change over time.
However, as a cautionary note detailed preparations are made for dealing with accidents and
emergencies even though the probability of a catastrophic accident is low. Therefore some
preliminary planning may be appropriate; this will be easier for plants already subject to
inspection. This is where the National Authority should really come into its own. In the UK we
envisage an advance party of NA personnel going to the site immediately upon notification to
help expedite planning and hosting arrangements. Briefing pack and training videos all have a
part to play here.

27. Although most routine inspections are largely "quantitative" in nature ie simply checking
the declarations, they have "qualitative" aspects as well since a wide range of evidence is
evaluated for its potential indication of illegal CW activities. A challenge inspection is almost
exclusively qualitative in nature. Both industry and National Authorities should keep this fact
uppermost in their preparations. Inspectors need information to be able to fulfill their duties.
National Authorities and the site personnel should see that they receive the information
required. This can be done without causing undue problems for the protection of commercial
confidentiality.

28. Many of the procedures, methodologies and preparations are the same whether the
inspection is "routine" or "challenge"; or held at a chemical, pharmaceutical or a nuclear
weapons related facility. This might seem a surprising conclusion, but notwithstanding the
separate objectives and limited goals of Schedule 2 and 3 inspections, and the fundamentally
different nature of the activities underway at chemical and military sites, the actual conduct of a
CBW inspection in practice tends to be the same regardless of the scenario.
248 Effective Implementation of the CWC

D. Documents presented at the Conference

Documents Concerning European Community Competency

with regard to the CWC

a) Draft Proposal by the Commission (July 1992)

Communication to the Commission

Subject: Proposal for a Council decision authorizing the Member States to negociate and
conclude a convention concerning matters which falls within the sphere of competence of the
Community

1. The attached proposal for a Council decision intends to delegate powers to the Member
States to negociate and conclude certain provisions of the Geneva Convention on chemical
weapons. Indeed, this Convention which aims at the non-proliferation of chemical weapons,
also deals with the trade of chemical substances falling within the sphere of competence of the
Community.

2. The negociations which have been conducted at the level of the Member States have
reached such an advanced stage to render the formal participation of the Community practically
impossible.

3. In these circumstances, the option to delegate the competence of the Community to

Member States, with a formal Council decision, seems to be the most appropriate. It is
therefore proposed to adopt this solution.

Explanatory Memorandum

The purpose of this proposal is to authorize the Member States to negotiate certain provisions
of the future Convention on chemical weapons (the Geneva Convention) that concern matters
falling within the sphere of competence of the Community and to conlude that part of the
Convention.

It has become apparent that Articles VI and XI of the Convention concern, inter alia, trade in
chemical substances, which falls within the scope of the commercial policy of the Community.

This has therefore raised the question of the participation of the Community, per se, in the
Geneva negotiations. In view, however, of the particularly advanced stage that the negotiations
have now reached, it does not appear advisable to request participation by the Community, as a
new contracting party, in the said negotiations since that would, inter alia, be certain to delay
matters.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 249

This proposal for a Decision makes it clear that the obligations of the Member States under
the Geneva Convention must remain compatible with those inherent in their membership of the
Community.

In these circumstances, it appears appropriate to delegate powers to the Member States, by

this Decision, in order to ensure compliance with the provisions of the Treaty.

Proposal for a Council Decision

of

authorizing the Member States to negotiate and conclude a convention concerning matters
which

fall within the sphere of competence of the Community

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community, and in
particular Article 113 thereof,

Having regard to the proposal from the Commission,

Whereas the Community and its Member States affirmed the importance they attach to the
conclusion of the Geneva Convention on chemical wepons in the Luxembourg Declaration;

Whereas in the course of the negotiations at the Geneva Conference on chemical weapons it
became apparent that certain provisions of Articles VI and XI of the said Conventions
concerning, notably, trade in chemical substances, their use and the control measures relating to
such trade and to the manufacture of such substances fall within the sphere of competence of
the Community; whereas the Member States should, accordingly, be authorized to negotiate and
conclude the parts of the Convention that fall within the said sphere of competence;

Whereas the urgent need to conclude the said Convention and the advanced stage that the
negotiations have reached make participation by the Community extremely difficult;

Whereas it is necessary to ensure compliance with the rules of the Treaty and in particular,
those concerning the establishement of the internal market, in accordance with Article 8a of the
Treaty; whereas a clause should, accordingly, be included in the Convention which allows the
free movement of goods within the territory of the Community to be maintained, if necessary
by way of derogation from the general rules of the Convention, so as to preclude controls on
trade within the Community in the products covered by the said Convention;

Whereas all the Member States have expressed their intention of concluding the said
Convention;
250 Effective Implementation of the CWC

Whereas the implementation of controls at the Community´s external frontier will need to be
harmonized,

HAS ADOPTED THIS DECISION:

Article 1

1. The Member States are hereby authorized, in connection with the Geneva Conference on
chemical weapons, to negotiate and conclude the provisions of the Convention which fall
within the sphere of competence of the Community.

2. The Member States shall ensure that, with due regard to the Treaty, trade in chemical
substance, as referred to in Articles VI and XI of the Convention, is conducted between them
without any restriction. To that end they shall, if necessary, require the inclusion of a clause
that allows them to ensure the free movement of the products concerned within the Community
and which does not preclude the introduction of harmonized control measures in relation to
third countries.

Article 2

This Decision is addressed to the Member States.

Done at Brussels, For the Council

[This proposal was not adopted by the Council.]

 Conference Proceedings, Bad Homburg 8 - 10 September 1995 251

b) European Community Council Declaration (1993)

Projèt de declaration à inscrire au procès verbal du Counseil relative à

la convention sur les armes chimiques

LE CONSEIL DES COMMUNAUTES EUROPEENNES

Prenant acte:

- de l´importance que la Communauté et ses Etats membres attachent à la conclusion de la

Convention sur les armes chimiques;

- du fait que certaines dispositions des articles VI et XI proposés dans le projet de convention
concernent des mesures de contr’le relatives aux échanges de précurseurs chimiques, qui
pourraient avoir des incidences sur la libre circulation des biens entre les Etats membres et sur la
politique commerciale de la Communauté;

- du fait que tous les Etats membres ont manifesté l´intention de devenir parties à la
convention,

demande aux Etats membres de veiller, par tout moyen approprié à ce que les dispositions des
articles VI et XI proposés soient appliquées de manière compatible avec les règles de la
Communauté concernant la libre circulation des biens entre les Etats membres et la politique
commerciale.

Recommande aux Etats membres de coordonner leurs dates de signature et de ratification

éventuelle de la convention

[This declaration was adopted by the EC Council in 1993]

252 Effective Implementation of the CWC

c) COUNCIL REGULATION (EC) No 3381/94 of

19 December 1994 setting up a Community regime
for the control of exports of dual-use goods
(OFFICIAL JOURNAL NO. L 367 , 31/12/94 P. 0001)

COUNCIL REGULATION (EC) No 3381/94 of 19 December 1994 setting up a Community

regime for the control of exports of dual-use goods

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article
113 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Whereas, in establishing the internal market, the free movement of goods, including dual-use
goods, must be ensured in accordance with the relevant provisions of the Treaty; whereas intra-
Community trade in certain dual-use goods is currently subject to controls by the Member
States; whereas a condition for the elimination of such controls on intra-Community trade is the
application by the Member States of the most effective controls possible, based on common
standards, on the export of the aforesaid goods in the framework of a Community regime of
exports controls for dual-use goods;
whereas the elimination of such controls will improve the international competitiveness of
European industry;
Whereas it is also the aim of this Regulation that dual-use goods should be subject to effective
control when they are exported from the Community;
Whereas an effective system of export control on dual-use goods on a common basis is also
necessary to ensure that the international commitments of the Member States and the European
Union, especially on non-proliferation, are complied with;
Whereas common lists of dual-use goods, destinations and guidelines are essential elements
for an effective control system; whereas decisions concerning the content of these lists are of a
strategic nature and consequently fall within the competence of the Member States; whereas
those decisions are the subject of joint action pursuant to Article J.3 of the Treaty on European
Union;
Whereas the Ministers for Foreign Affairs of the Community adopted, on 20 November
1984, the Declaration of Common Policy, subsequently adopted by Spain and Portugal, which
covers in particular the arrangements concerning intra-Community transfers of separated
plutonium and of uranium enriched to more than 20 %, as well as installations, the main
components of crucial importance and technology related to reprocessing, to enrichment and to
the production of heavy water;
Whereas the aforesaid joint action and this Regulation constitute an integrated system;
Whereas this system represents a first step towards the establishment of a common system
for the control of exports of dual-use goods which is complete and consistent in all respects;
whereas, in particular, it is desirable that the authorization procedures applied by the Member
States should be harmonized progressively and speedily;
Whereas the Community has adopted a body of customs rules, contained in the Community
Customs Code (3) and its implementing provisions (4) which lay down, among other things,
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 253

provisions relating to the export and re-export of goods; whereas nothing in this Regulation
constrains any powers under and pursuant to the Code and its implementing provisions;
Whereas Member States should, when considering conditions concerning re-export or end-
use of dual-use goods, take into account relevant principles of international law;
Whereas the aim of Articles 4 and 5 of this Regulation is to ensure effective control of exports
of dual-use goods; whereas those Articles do not prevent Member States from adopting or
maintaining, for the same purpose and with due regard for the internal market, additional export
control measures which are compatible with this Regulation’ s objectives;
Whereas, to eliminate the risk of diversion of dual-use goods from their intended destination
in another Member State to a destination outside the Community during the initial phase in
which the Member States are adjusting to the requirements of this Regulation, provision should
be made for the application of simplified controls on intra-Community trade in dual-use goods;
whereas this may include a system of general authorizations;
whereas the implementation period should be of limited duration;
whereas, during this implementation period, intra-Community trade in dual-use goods should
not be subject to stricter controls than are applied on exports from the Community;
Whereas, pursuant to and within the limits of Article 36 of the Treaty, and pending a greater
degree of harmonization, Member States will retain the right, both during and after the
transitional period, to carry out controls om dual-use goods in order to safeguard public policy
or public security;
Whereas, in order to ensure that this Regulation is properly applied, each Member State shall
take measures giving the competent authorities appropriate powers;
Whereas each Member State shall determine the penalties to be imposed in the event of breach
of the provisions of this Regulation,

HAS ADOPTED THIS REGULATION:

TITLE I Subject and definitions

Article 1
This Regulation introduces a Community system of export controls for dual-use goods.

Article 2
For the purpose of this Regulation:
(a) ‘dual-use goods` shall mean goods which can be used for both civil and military
purposes;
(b) ‘export` shall mean a procedure referred to in Article 161 of the Community Customs
Code under which Community goods temporarily or definitively leave the customs territory of
the Community; it includes re-export, that is to say a transaction of the kind referred to in
Article 182 of the Code by which non-Community goods leave the customs territory of the
Community;
(c) ‘exporter` shall mean any natural or legal person on whose behalf the export declaration is
made and who is the owner of the dual-use goods or has a similar right of disposal over them at
the time when the declaration is accepted. Where ownership or the benefit of a similar right to
dispose of the dual-use goods belongs to a person established outside the Community pursuant
to the contract on which the export is based, the exporter shall be considered to be the
contracting party established in the Community;
(d) ‘competent authorities` shall mean the authorities in each Member State responsible for
applying this Regulation;
(e) ‘export declaration` shall mean the act whereby a person indicates in the prescribed form
254 Effective Implementation of the CWC

and manner the wish to place dual-use goods under an export procedure.

TITLE II Scope

Article 3
1. An authorization shall be required for the export of the dual-use goods listed in Annex I to
Council Decision 94/942/CFSP of 19 December 1994 on the joint action adopted by the
Council on the basis of Article J.3 of the Treaty on European Union concerning the control of
exports of dual-use goods (1).
2. In pursuance of Article 4 or Article 5, an authorization may be required for the export to all
or certain destinations of certain dual-use goods not listed in Annex I to Decision 94/942/CFSP.
3. Dual-use goods which pass only through the territory of the Community, whether or not
subject to a transit procedure, fall outside the provisions of the Regulation. A Member State
may take appropriate measures in respect of such goods.

Article 4
1. An authorization shall be required for the export of dual-use goods not listed in Annex I to
Decision 94/942/CFSP, if the exporter has been informed by his authorities that the goods in
question are or may be intended, in their entirety or in part, for use in connection with the
development, production, handling, operation, maintenance, storage, detection, identification
or dissemination of chemical, biological or nuclear weapons or the development, production,
maintenance or storage of missiles capable of delivering such weapons, as covered by the
corresponding non-proliferation arrangements.
2. If the exporter is aware that the goods in question are intended, in their entirety or in part,
for one of the purposes referred to in paragraph 1, he must notify his authorities, which will
decide whether or not it is expedient to make the export concerned subject to authorization.
3. Member States may adopt or maintain national legislation stipulating that the exporter has
to notify his authorities where he has grounds for suspecting that the goods concerned are
intended wholly or in part, for one of the purposes referred to in paragraph 1, and that in such a
case the export operation may be made subject to authorization.

Article 5
1. With a view to pursuing the objectives of this Regulation effectively in terms of export
controls, a Member State may prohibit or make subject to authorization the export of dual-use
goods not listed in Annex I to Decision 94/942/CFSP.
2. Paragraph 1 shall apply to such measures which:
(a) exist at the time of entry into force of this Regulation, and
(b) are taken after the date of entry into force of this Regulation.
3. Member States shall notify the other Member States and the Commission of the measures
referred to in paragraph 2 (a) within one month of the date of entry into force of this
Regulation. Member States shall notify the other Member States and the Commission of the
measures referred to in paragraph 2 (b) immediately after their adoption. Member States shall
also notify the other Member States and the Commission of any modifications concerning the
measures referred to in paragraph 2, points (a) and (b).
4. The Commission shall publish the measures notified pursuant to paragraph 3 in the ‘C`
series of the Official Journal of the European Communities.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 255

TITLE III Export authorization

Article 6
1. An individual authorization shall be required for each export subject to this Regulation.
However, Member States may apply simplified formalities as provided for in the following
points:
(a) a general authorization in respect of a type or category of dual-use goods, in
accordance with Annex II to Decision 94/942/CFSP;
(b) a global authorization to a specific exporter in respect of a type or category of dual-
use goods which may be valid for exports to one or more specified countries;
(c) simplified procedures if an authorization is required by the authorities of a Member
State, under Article 5.
2. An export authorization may be subject, if appropriate, to certain requirements and
conditions. In particular, the competent authorities of a Member State may require a statement
of end-use and may impose other conditions concerning the end-use and/or the re-export of the
goods.
3. The export authorization shall be valid throughout the Community.

Article 7
1. An export authorization shall be granted by the competent authorities of the Member State
in which the exporter is established.
2. If the dual-use goods in respect of which an application has been made for an individual
export authorization to a destination not specifically mentioned in Annex II to Decision
94/942/CFSP or to all destinations in the case of very sensitive dual-use goods referred to in
Annex IV to the said Decision are or will be located in a different Member State, this shall be
indicated on the application. The licensing authorities of the Member State to which the
application for authorization has been made shall immediately consult the licensing authorities
of the Member State(s) in question and provide the relevant information. The Member State(s)
consulted shall make known, following receipt of the information referred to in Article 14 and
of any supplementary information required, within 10 working days, any objections it (they)
may have to the granting of such an authorization, which shall bind the Member State in which
the application has been made. If no objections are received within the above period, the
opinion of the Member State consulted shall be regarded as positive.
3. If an exportation might prejudice its essential interests, a Member State may request
another Member State not to grant an export authorization or, if such authorization has been
granted, request its annulment, suspension, modification or revocation. The Member State
receiving such a request shall immediately engange in consultations of a non-binding nature
with the requesting Member State, to be terminated within 10 working days.
4. Member States shall furnish the Commission with a list of the competent authorities
empowered to issue export authorizations for dual-use goods.
5. The Commission shall publish the list of the authorities referred to in paragraph 4 in the
‘C` series of the Official Journal of the European Communities.

Article 8
In deciding whether or not to grant an export authorization, the competent authorities shall
take into consideration in the common guidelines set out in Annex III to Decision No
94/942/CFSP.
256 Effective Implementation of the CWC

Article 9
1. Exporters shall supply the competent authorities with all relevant information required for
their applications for authorization.
2. The competent authorities of the Member State referred to in Article 7 (1), acting in
accordance with this Regulation, may refuse to issue an export authorization and may annul,
suspend, modify or revoke an export authorization which they have already issued. Where the
authorization is refused, annulled, suspended, substantially limited or revoked, they shall
inform the competent authorities of the other Member States and, where appropriate, exchange
the relevante information with the other Member States and the Commission, while complying
with the provisions of Article 13 (2) concerning the confidentiality of such information.

TITLE IV Customs procedures

Article 10
1. When completing the export formalities at the customs office responsible for handling the
export declaration, the exporter shall furnish proof that the export has been duly authorized.
2. A translation of any documents furnished as proof into the official language or one of the
official languages of the Member State where the declaration is presented may be required of the
exporter.
3. Without prejudice to any powers conferred on it under, and pursuant to, the Community
Customs Code, a Member State may also, for a period not exceeding 10 working days,
suspend the process of release for export from its territory, or, if necessary, otherwise prevent
the dual-use goods listed in Annex I to Decision 94/942/CFSP which are covered by a valid
authorization from leaving the Community via its territory, where it has grounds for suspicion
that:
- relevant information was not taken into account when the authorization was granted, or
- circumstances have materially changed since the issue of the authorization. In such
cases, the competent authorities of the Member State which have granted an export
authorization shall be consulted forthwith in order that they may take action pursuant to
Article 9 (2). Should these authorities decide to maintain the authorization or if no reply
has been received within the 10 working days mentioned in the first subparagraph, the
dual-use goods shall be released immediately unless the consulting Member State has
recourse to the provisions of paragraph 4.
4. In exceptional circumstances, where a Member State considers an exportation would be
contrary to its essential foreign policy or security interests or to the fulfilment of its international
obligations or commitments, it may prevent the dual-use goods from leaving the Community
via its territory even though the export was duly authorized. When a Member State takes action
under this paragraph, the goods concerned shall be put at the disposal of the exporter. The
competent authorities of the Member State which issued the authorization shall be duly
informed.

Article 11
1. Member States may determine that customs formalities for the export of dual-use goods
may be completed only at customs offices empowered to that end.
2. Member States taking the option offered by paragraph 1 shall inform the Commission of
the customs offices duly empowered. The Commission shall publish this information in the ‘C`
series of the fficial Journal of the European Communities.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 257

Article 12
The provisions of Part II, Title II, Chapter 11 of the provisions for application of the
Community Customs Code and Article 22 of Appendix I to the Convention on a common
transit procedure (1) concluded on 20 May 1987 by the Community and the EFTA countries
shall apply where carriage of dual-use goods is effected between two points in the Community
through the territory of an EFTA country.

TITLE V Administrative cooperation

Article 13
1. Acting in liason with the Commission, Member States shall take all appropriate measures
to establish direct cooperation and exchange of information between competent authorities, in
particular to eliminate the risk that possible disparities in the application of export controls may
lead to a deflection of trade, which could create difficulties for one or more Member States.
2. Council Regulation (EEC) No 1468/81 of 19 May 1981 on mutual assistance between the
administrative authorities of the Member States and cooperation between the latter and the
Commission to ensure the correct application of the law on customs or agricultural matters (2),
and in particular the provisions on the confidientiality of information, shall apply mutatis
mutandis, without prejudice to Article 16 of this Regulation.

TITLE VI Control measures

Article 14
1. The exporters must keep detailed registers or records of their transactions, in accordance
with the practice in force in the respective Member States. Such registers or records must
include in particular commercial documents such as invoices, manifests and transport and other
dispatch documents containing sufficient information to allow the following to be identified:
- the description of the dual-use goods,
- the quantitiy of the dual-use goods,
- the name and address of the exporter and of the consignee,
- where known, the end-use and end-user of the dual-use goods.
2. The registers and records and the documents referred to in paragraph 1 must be kept for at
least three years from the end of the calendar year in which the export referred to in paragraph 1
took place. They must be produced to the competent authorities on request.

Article 15
In order to ensure that this Regulation is properly applied, each Member State shall take
whatever measures are needed to permit the competent authorities:
(a) to gather information on any order or transaction involving dual-use goods;
(b) to establish that the control measures are being properly applied, which may include
in paritcular the power to enter the premises of persons with an interest in an export
transaction.

TITLE VII General and final provisions

Article 16
258 Effective Implementation of the CWC

1. A Coordinating Group chaired by a representative of the Commission shall be set up. Each
Member State shall appoint a representative to the Coordinating Group.
2. The Coordinating Group shall examine:
(a) any question concerning the application of this Regulation, which may be raised
either by the chairman or by a representative of a Member State; and
(b) the measures which should be taken by Member States to inform exporters of their
obligations under this Regulation.
3. The Coordinating Group may, whenever it considers it to be necessary, consult
organizations representative of exporters concerned by this Regulation.

Article 17
Each Member State shall take appropriate measures to ensure proper enforcement of all the
provisions of this Regulation. In particular, it shall determine the penalties to be imposed in the
event of breach of the provisions of the Regulation or of those adopted for its application. Such
penalties must be effective, proportionate and dissuasive. In particular, for the implementation
of Article 4 (2), each Member State shall lay down and specify the nature of the breach of
national law and shall determine the nature of the penalty to be imposed.

Article 18
Each Member State shall inform the Commission of the laws, regulations and administrative
provisions adopted in implementation of this Regulation and of Decision 94/942/PESC. The
Commission shall forward this information to the other Member States. Every two years it shall
present a report to the European Parliament and the Council on the application of this
Regulation.

Article 19
1. For a transitional period, the following measures shall apply in respect of consignments
dispatched from one Member State to another:
(a) for dual-use goods listed in Annex I to Decision 94/942/PESC, the relevant
commerical documents shall indicate clearly that they are subject to control if exported
from the Community;
(b) for dual-use goods listed in Annex IV to Decision 94/942/PESC, authorizations shall
be required by all Member States. Those authorizations may not be general
authorizations.
2. Documents and records of consignments of dual-use goods listed in Annex I to Decision
94/942/CFSP must be kept for at least three years from the end of the year in which a
transaction took place and must be produced to the competent authorities on request. Any
natural or legal person who engages in intra-Community trade in the dual-use goods listed in
Annex I to Decision 94/942/CFSP must, before or within 30 days of the first such transaction,
provide details to the competent authorities of his name and the address where the documents
and records can be inspected.
3. (a) A Member State may require an authorization for the transfer of dual-use goods from
its territory to another Member State in cases where at the time of transfer:
- the operator knows that the final destination of the goods concerned is outside the
Community,
- export of those goods to that destination is subject to a licence pursuant to Articles 3, 4
or 5, and - no processing or working as defined in Article 24 of the Community
Customs Code is to be performed on the goods in the Member State to which they are
being transferred.
(b) The transfer authorization must be applied for in the Member State from which the dual-
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 259

use goods are transferred.

(c) A Member State which adopts such rules shall forthwith inform the other Member States
and the Commission of the measures it has taken in accordance with Article 13.
4. These measures shall not involve the application of internal frontier controls within the
Community, but solely controls which are performed as part of the normal control procedures
applied in a non-discriminatory fashion throughout the territory of the Community.
5. The need for the measures provided for by this Article shall be re-examined within three
years from the date of entry into force of this Regulation.
6. Applicaton of this Article may in no case result in consignments of a specific product from
one Member State to another being subject to more restrictive conditions than those imposed for
exports of the same product to non-member countries.

Article 20
1. For consignments dispatched from one Member State to another of dual-use goods listed
in Annex V to Decision 94/942/CFSP, individual authorizations (including, if appropriate,
conditions concerning end-use and/or retransfer) may be required by the Member States as
indicated in that Annex.
2. The measures referred to in paragraph 1 shall not involve the application of controls at the
Community’s internal frontiers, but solely controls which are performed as part of the normal
control procedures applied in a non-discriminatory fashion throughout the territory of the
Community.

Article 21
1. An authorization shall be required for intra-Community transfers of separated plutonium
and uranium enriched to more than 20 %, as well as installations, main components of crucial
importance and technology related to reprocessing, to enrichment and to the production of
heavy water, under the terms of the Declaration of Common Policy of 20 November 1984.
2. The measures referred to in paragraph 1 shall not involve the application of internal frontier
controls within the Community, but solely controls which are performed as part of the normal
control procedures applied in a non-discriminatory fashion throughout the territory of the
Community.

Article 22
This Regulation does not affect:
- the application of Article 223 of the Treaty establishing the European Community;
- the application of the Treaty establishing the European Atomic Energy Community.

Article 23
Council Regulation (EEC) No 428/89 of 20 February 1989 concerning the export of certain
chemical products (1) is hereby repealed.

Article 24
This Regulation shall enter into force on the day of its publication. It shall apply from 1
March 1995. This Regulation shall be binding in its entirety and directly applicable in all
Member States.

Done at Brussels, 19 December 1994.

For the Council The President K. KINKEL

260 Effective Implementation of the CWC

(1) OJ No C 253, 30. 9. 1992, p. 13.

(2) OJ No C 268, 4. 10. 1993, p. 26.
(3) Council Regulation (EEC) No 2913/92 (OJ No L 302, 19. 10. 1992, p. 1).
(4) Commission Regulation (EEC) No 2454/93 (OJ No L 253, 11. 10. 1993, p. 1).
(1) See page 8 of this Official Journal.
(1) OJ No L 226, 13. 8. 1987, p. 2, as amended by OJ No L 402, 31. 12. 1992, p. 1.
(2) OJ No L 144, 2. 6. 1981, p. 1. Regulation as amended by Regulation (EEC) No 945/87
(OJ No L 90, 2. 4. 1987, p. 3).
(1) OJ No L 50, 22. 2. 1989, p. 1.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 261

PrepCom Document

Preparatory Commission for the Organisation for the Prohibition of Chemical

Weapons
PC-XI/7 18 July 1995 Original: ENGLISH

Eleventh Session
(24 - 28 July 1995)

NOTE BY THE EXECUTIVE SECRETARY

MODEL NATIONAL IMPLEMENTING LEGISLATION

I. INTRODUCTION

Before the actual application of the provisions of the Convention on the Prohibition of the
Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction
("the Convention"), all signatory States will have to go through three steps of implementation in
order to be in a position to apply the Convention. This will be necessary regardless of whether
the legal system of the signatory State is of the common law or the civil law tradition.

(a) The first step is the ratification of the Convention. It is the formal act by which
signatory States become bound by the Convention upon its entry into force.

(b) The second step, which may be combined with the first step or which may
immediately follow it, is the adoption of national implementing legislation.
Pursuant to this, the National Authority and any other authorised department can
be in place at entry into force of the Convention.

(c) The third step will be promulgation of the necessary complementary ordinances by
the executive branch under the authority granted in the primary legislation. This will
provide further legislative support for the functioning of the National Authority
and any other authorised department and will ensure that the State Party is in
compliance with the Convention.

The actual implementation measures will vary from one signatory State to another according to
the size and character of a particular signatory State's chemical industry and the requirements of
its legal system, as well as according to other considerations. The model below has been largely
drawn from legislation already drafted by signatory States. It relates to the first two steps
delineated in subparagraphs (a) and (b) above, and is intended for signatory States that have no
chemical weapons and that will have little or no declarable chemical industry. The model will
outline the major subjects that should, in most cases, be addressed in the legislation. It should,
however, be pointed out that Section 6 of this model (on criminal legislation) outlines elements
of legislation that should be generally followed by all States Parties.

It is understood that the suggested drafts for legislation which are provided below and in the
262 Effective Implementation of the CWC

Annex to this Note will be adapted by signatory States in accordance with their specific
legislative requirements.
II. MODEL ACT TO IMPLEMENT THE CONVENTION

1. Approval

This step could be taken either alone or together with enactment of the implementing legislation
and is, indeed, the first and vital step in the entire process. Before enacting any implementing
legislation the Parliament will have to approve the Convention together with its Annexes, which
form an integral part of it.

Suggested draft

"The Convention on the Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on their Destruction of 13 January 1993, together with its
Annexes (Annex on Chemicals, Annex on Implementation and Verification and Annex
on the Protection of Confidential Information) which form an integral part of it, is hereby
approved."

2. General provision on executive powers

The executive branch of a State Party may be given general powers for implementing the
Convention. This may be done through a general provision that empowers the executive branch
to promulgate such subsidiary measures as may be necessary, including the bilateral agreement
with the OPCW in accordance with Article VIII, paragraph 50 of the Convention1 and
provisions for the conduct of inspections. Such a catch-all provision will also be helpful in
solving any other urgent problem arising from the implementation of the Convention, such as
control of the transfer of chemicals.

Suggested draft

"The executive branch may issue legal or administrative provisions necessary for the
implementation of the Convention and its Annexes. These provisions may, inter alia,
impose on the owner or the holder of other rights on premises such obligations as are
necessary for carrying out any relevant activity, including provisions on access to such
premises in accordance with the Convention. The executive branch will also conclude the
Bilateral Agreement with the OPCW in accordance with Article VIII, paragraph 50, of the
Convention."

3. Supremacy of the Convention

In case of conflict between the provisions of the Convention and provisions of the internal law
of the State Party, the provisions of the Convention shall prevail. A provision to that effect
would be a useful basket provision that would close any loopholes in the legislation.

1 Unless the privileges and immunities of the OPCW and its inspectors are an automatic result of the ratification
of the Convention by a State Party, they will be granted in the bilateral agreement between the State Party and
the OPCW. This should include, in particular, the privileges and immunities set forth in Section B of Part II of
the Verification Annex.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 263

Suggested draft

"In case of conflict between the provisions of the Convention and provisions of the
internal law of [the State Party], the provisions of the Convention shall prevail".

4. The National Authority

Under paragraph 4 of Article VII, States Parties are required to set up a National Authority "to
serve as the national focal point for effective liaison with the Organisation and other States
Parties". The National Authority will conduct the necessary contacts with the OPCW, and
within the State Party it would be entrusted with the administration associated with
implementing the Convention. In case of an inspection, the National Authority will act on
behalf of the State Party in the conduct of the inspection.

The establishment or designation of the National Authority is mainly an administrative matter. It

should, however, be made statutory through legislation. The National Authority could be set up
within one of the Government Ministries.

The National Authority should be authorised to require information to be submitted to it for the
purpose of implementing the Convention. This would apply to information from the chemical
industry for the purpose of declarations, and information on the export and import of chemicals
for the purpose of the control regime required and possible declarations. The powers to require
information should be accompanied by criminal provisions on refusal to provide information or
on the submission of false information.

Once designated or established, the National Authority may issue the necessary regulations with
regard to the provision of information as outlined above.

Suggested draft

"The National Authority for the Prohibition of Chemical Weapons is hereby established. It
will be constituted within the Ministry of [Foreign Affairs, Defence, Trade and Industry,
Justice, ...].

The National Authority shall fulfil the functions set forth in paragraph 4 of Article VII of
the Convention, shall coordinate the activities of all Government agencies and industrial
facilities in the implementation of the Convention and shall issue the necessary regulations
for this purpose.

The National Authority is empowered to require any natural or legal person to submit to it
any information regarding chemical industrial activities or the import or export of
chemical as may be necessary for the implementation of the Convention."

A paragraph on penalties should follow for persons refusing to submit information under this
Article or who submit false information.
264 Effective Implementation of the CWC

5. Permanent mission to the OPCW

In accordance with the practice currently followed by many signatory States, it is suggested that
the representation of the State Party to the OPCW be entrusted to the Ministry of Foreign
Affairs.

Suggested draft

"The Ministry of Foreign Affairs will be entrusted with the representation of [the State
Party] to the OPCW in The Hague, the Netherlands."

6. Criminal provisions

Article VII of the Convention specifically requires the enactment of penal provisions that will
outlaw certain activities concerning chemical weapons.

Recent instances of the use of chemical weapons in terrorist activities have demonstrated the
special significance of these penal provisions. Through these provisions, the Convention will
become an important instrument for combating this new phenomenon. Any violations would
accordingly be criminalised in terms of both international and internal law.

Prohibited activities

The requirement in Article VII is that the prohibition cover "any activity prohibited to a State
Party under this Convention".

The basic prohibitions are, of course, those that appear in Article I of the Convention. Each and
every one of the activities mentioned in paragraph 1 of Article I should be covered by the
legislation, including activities that are normally undertaken by States and not by individuals.
The most convenient way to do this would be to reproduce paragraph 1 of Article I of the
Convention in the form of criminal legislation.

In addition to the prohibitions of subparagraph 1(a) of Article I, it would prove useful also to
prohibit the ownership and possession of chemical weapons. This new element may prove
especially important with regard to terrorism.

Paragraph 1 of Part VI of the Verification Annex prohibits acquiring Schedule 1 chemicals from
or transferring them to a State not Party to the Convention. And any transfer of such chemicals
between States Parties is subject to additional conditions in paragraph 2. Paragraph 31 of Part
VII stipulates that three years after the entry into force of the Convention, Schedule 2 chemicals
shall only be transferred to or received from States Parties.

Sphere of application

The penal legislation should apply to natural or legal persons, irrespective of their nationality, in
the territory of the State Party or in any other place under its jurisdiction or control. The
prohibitions should also extend to natural persons having the nationality of the State Party
acting anywhere in the world.

Suggested draft

"No person shall

(a) develop, produce, otherwise acquire, stockpile, own, possess, or retain

 Conference Proceedings, Bad Homburg 8 - 10 September 1995 265

chemical weapons, or transfer, directly or indirectly, chemical weapons to

anyone;

(b) use chemical weapons;

(c) engage in any military preparations to use chemical weapons;

(d) assist, encourage or induce, in any way, anyone to engage in any activity
prohibited to a State Party under the Convention;

(e) transfer to or receive from any person in a State not Party any of the chemicals
listed in Schedule 1 or Schedule 2 of the Annex on Chemicals, except in
accordance with the provisions of Sections A and B of Part VI or Section C of Part
VII of the Verification Annex;

(f) transfer any of the chemicals listed in Schedule 3 of the Annex on Chemicals
unless the transfer complies with the provisions of Section C of Part VIII of the
Verification Annex.

This Article extends to acts or omissions by a national of [the State Party] outside the
territory of [the State Party]."

An additional paragraph should impose the appropriate penalties on violators. Penalties under
this Article would probably vary according to the violation involved. However, as these are the
most basic violations of the very purpose of the Convention, penalties should be severe enough
to deter possible violators. Legislation already drafted in this respect includes the penalty of life
imprisonment for the most serious violations. It is proposed that the penalties should be not less
than five years' imprisonment.

7. Confidentiality

States Parties will have in their possession confidential information which they received from
the Organisation, or from their own industry in connection with the implementation of the
Convention.

States Parties are under the obligation to protect the confidentiality of such information (in
particular in accordance with paragraph 6 of Article VII). This protection is basically a matter of
administrative arrangements.

The legislation on this subject should contain two elements: the first establishing the privileged
status of the information in accordance with the provisions of the Convention and the other
imposing penalties for the unauthorised disclosure of such privileged information.
266 Effective Implementation of the CWC

Suggested draft

"(1) Information obtained pursuant to this Act or the Convention is privileged.

(2) No person in possession of privileged information shall, without the consent of the
person from whom it was obtained, communicate it or allow it to be
communicated to any person, or allow any person to have any access to it, except
pursuant to an obligation of the Government of [the State Party] under the
Convention.

(3) Any person who violates the provisions of this Article will be liable to
imprisonment of [...] years and a fine of [...]."

8. Entry into force

In accordance with the practice followed by signatory States which have ratified the
Convention, there is a need to establish a distinction between the provisions of the Act which
will take effect upon enactment (those empowering the executive branch and the establishment
of the National Authority, which should be set up at least 180 days before entry into force of
the Convention), and the remaining provisions of the Act, which will take effect upon entry into
force of the Convention.

Suggested draft

"With the exception of Articles 2 and 4 which shall be effective immediately, the
remaining Articles of the present Act will enter into force on the day on which the
Convention enters into force."
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 267

Annex

MODEL ACT TO IMPLEMENT THE CONVENTION ON THE PROHIBITION

OF THE DEVELOPMENT, PRODUCTION, STOCKPILING AND USE OF
CHEMICAL WEAPONS AND ON THEIR DESTRUCTION

The [Parliament of the State Party] hereby enacts the following:

Article 1. Approval of the Convention 1

The Convention on the Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on their Destruction of 13 January 1993, together with its
Annexes (Annex on Chemicals, Annex on Implementation and Verification and Annex
on the Protection of Confidential Information) which form an integral part of it, is hereby
approved.

Article 2. Executive Powers

The executive branch may issue legal or administrative provisions necessary for the
implementation of the Convention and its Annexes. These provisions may, inter alia,
impose on the owner or the holder of other rights on premises such obligations as are
necessary for carrying out any relevant activity, including provisions on access to such
premises in accordance with the Convention. The executive branch will also conclude the
Bilateral Agreement with the OPCW in accordance with Article VIII, paragraph 50, of the
Convention.

Article 3. Supremacy of the Convention

In case of conflict between the provisions of the Convention and provisions of the internal
law of [the State Party], the provisions of the Convention shall prevail.

Article 4. The National Authority

The National Authority for the Prohibition of Chemical Weapons is hereby established. It
will be constituted within the Ministry of [Foreign Affairs, Defence, Trade and Industry,
Justice, ...].

The National Authority shall fulfil the functions set forth in paragraph 4 of Article VII of
the Convention, shall coordinate the activities of all Government agencies and industrial
facilities in the implementation of the Convention and shall issue the necessary regulations
for this purpose.

The National Authority is empowered to require any natural or legal person to submit to it
any information regarding chemical industrial activities or the import or export of
chemical as may be necessary for the implementation of the Convention.

Article 5. Permanent Mission to the OPCW

1 This Article could be enacted alone, as a first step, or together with the Articles which follow concerning the
implementing legislation.
 Effective Implementation of the CWC
268

The Ministry of Foreign Affairs will be entrusted with the representation of [the State
Party] to the OPCW in The Hague, the Netherlands.
Article 6. Criminal Provisions

No person shall

(a) develop, produce, otherwise acquire, stockpile, own, possess, or retain chemical
weapons, or transfer, directly or indirectly, chemical weapons to anyone;

(b) use chemical weapons;

(c) engage in any military preparations to use chemical weapons;

(d) assist, encourage or induce, in any way, anyone to engage in any activity
prohibited to a State Party under the Convention;

(e) transfer to or receive from any person in a State not Party any of the chemicals
listed in Schedule 1 or Schedule 2 of the Annex on Chemicals, except in
accordance with the provisions of Sections A and B of Part VI or Section C of Part
VII of the Verification Annex;

(f) transfer any of the chemicals listed in Schedule 3 of the Annex on Chemicals
unless the transfer complies with the provisions of Section C of Part VIII of the
Verification Annex.

This Article extends to acts or omissions by a national of [the State Party] outside the
territory of [the State Party].

[Appropriate penalties for violations will also have to be specified, including penalties for
the refusal to submit information to the National Authority or for submission of false
information.]

Article 7. Confidentiality

(1) Information obtained pursuant to this Act or the Convention is privileged.

(2) No person in possession of privileged information shall, without the consent of the
person from whom it was obtained, communicate it or allow it to be communicated
to any person, or allow any person to have any access to it, except pursuant to an
obligation of the Government of [the State Party] under the Convention.

(3) Any person who violates the provisions of this Article will be liable to
imprisonment of [...] years and a fine of [...].

Article 8. Entry into force

With the exception of Articles 2 and 4 which shall be effective immediately, the remaining
Articles of the present Act shall become effective on the day on which the Convention
enters into force.
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 269

Annex

Conference Agenda
Friday, 8 September

10.00 Opening session: Welcome by Professor M. Bothe

(Frankfurt University),
Mr I. Kenyon (Executive
Secretary of the PrepCom)
and a representaive from the SIPRI—
Saskatchewan—Frankfurt Project

10.30-13.00 First session: 'Country reports' and discussion of 'Problems

encountered and solutions proposed'.

Chair: Mr T. Kurzidem
(Frankfurt University)

Synopsis: Country reports on National Authority

aspects and implementation issues:
comments and questions.

Comparative report: Professor M. Bothe

(Frankfurt University)

14.30-18.00 Second session: Presentation of the German programme on

CWC implementation.

Chair: Professor M. Bothe

(Frankfurt University)

Synopsis: Representatives from Ministry of Foreign

Affairs, Verification Center Geilenkirchen,
BAFA (Eschborn), German Chemical
Manufactures Association (VCI) and from
a chemical company present the
German approach to national
implementation.

Introduction: Mr P. von Butler (MFA, Germany)

Presentations by:

Mr Bundscherer Ministry of Foreign Affairs

 Effective Implementation of the CWC
270
Mr Mihm Verification Center Geilenkirchen
Dr Ruck Federal Exports Control Office (BAFA)
Dr Männig German Chemical Manufacturers
Association (VCI)
Dr Kohl Hoechst AG
Mr Steinbach Association of Chemical Traders in
Germany

Saturday, 9 September

10.00-13.00 Third session: Declaration requirements

Chair: Professor R. G. Sutherland

(Saskatchewan University, Canada)

Synopsis: Declaration requirements for the

OPCW, the National Authority and an
individual facility National Authority and required declaration
How to locate facilities concerned with scheduled
chemicals and PSF? How to cope with the declaration
handbook?
Aspects of CBI

Presentations by:

Mr M. Walls (USA) CMA

Mrs H. van Heck (Germany) CEFIC
Mr T. Svensson (Sweden) National Authority
Dr P. Plant (UK) Chemical Industry
Dr D. Clagett (PTS) PTS/OPCW
Mr M. Moodie (USA) Aspects of CBI

14.30-18.00 Fourth session: Inspection requirements

Chair: Dr T. Stock (SIPRI)

Synopsis: Inspection requirements for a declared

facility from the perspective of the
individual facility, National Authority and
OPCW
The role of a national inspector
How to prepare individual facilities for
receiving inspections
CBI and inspections
Facility agreements
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 271

Presentations by:

Dr R. Trapp (PTS) PTS/OPCW

Mr T. Idogaki (Japan) Chemical industry
Dr G. Cooper (UK) National Authority

Sunday, 10 September

9.00-11.00 Fifth session: Industrial concerns about export controls

Chair: Mr I. Kenyon (Executive Secretary, PrepCom)

Synopsis: Export controls and Article XI

Australia Group and Article XI
National export controls
Harmonization

Presentations by:

Dr H. Müller (Germany) Future of export controls under

arms control agreements
Dr F. Calderon (PTS) International aspects of export
controls and obligations of a State
Party under Article XI
Mr S. Martodiwirjo Chemical industry's view on (Indonesia)
export control issues
Mr D. Halldearn (UK) National view on export control
issues—how difficult is it to collect
data on export?

11.15-12.45 Sixth session: Summing up, future requirements, future

activities, closing of the conference

Chair: Professor M. Bothe, Mr I. Kenyon, and

SIPRI—Saskatchewan—Frankfurt Project
 Effective Implementation of the CWC
272

LIST OF PARTICIPANTS

Ottawa Ontario
Argentine
Mr Felipe Frydman Denmark
Ministerio de Relaciones Exteriores Mr Bjarne Bitsch
Comercio Internacional y Culto Head of Division
Argentine National CWC Authority The Ministry of Business and Industry
Buenos Aires Copenhagen

Australia Finland
Mr Malcolm D. Coxhead Dr. Marjatta Rautio
Acting Head, CWC Implementation VERIFIN
Chemical Weapons Convention Office University of Helsinki
Barton Helsinki

Dr. Robert J. Mathews Germany

Defence Science and Technology Mr Christoph Bundscherer
Organisation Legationsrat 1. Klasse
Department of Defence Ministry of Foreign Affairs
Victoria Bonn

Austria Mr Peter von Butler

Dr. Bernhard M. Kainradl Ministerialdirigent
Internationale Verbots- und Ministry of Foreign Affairs
Kontrollübereinkommen Bonn
Bundesministerium für wirtschaftliche
Angelegenheiten Dr. Johann Dahm
Vienna Bayer AG
Agrochemical Division
Brazil Production Technicals, Overseas
Mr Otto Vicente Perrone Dormagen
NORQUISA, Nordeste Quimica S.A.
Botafogo - Rio de Janeiro Dr. Michael Geist
BASF Aktiengesellschaft
Canada Abt. Wirtschaftlichkeitsbewertung
Mr J. Tom Boehm Ludwigshafen
Department of Foreign Affairs and
International Trade Dr Hans Kohl
Ottawa, Ontario Hoechst AG
ZWS Transportsicherheit
Mr Daryl Dods Frankfurt am Main
Department of Foreign Affairs and
International Trade Mr Klaus Krinke
Non-Proliferation, Arms Control and German Chemical Manufacturers Association
Disarmament Division Abt. Handelspolitik und Verkehr,
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 273

Europakoordinierung Indonesia
Frankfurt am Main Jakarta

Dr. Detlef Männig

Degussa AG Italy
Hanau Mr Corrado Taliani
General Directorate of Political Affairs
Mr Jürgen Mihm Ministry of Foreign Affairs, MAE
LTC Rome
Verification Centre of the Federal Armed
Forces Japan
Geilenkirchen Mr Takayoshi Idogaki
Counseler
Dr. Manfred Ruck Japanese Chemical Industry Association
Federal Export Office Tokyo
Eschborn
Netherlands
Mr Aart-Jan Bogerd
Dr. Schramm
Ministry of Economic Affairs
Federal Export Office
Economic Investigation Service
Eschborn
International Economic Detective Department
The Hague
Mr Peter Steinbach
Association of Chemical Traders and
Ms Dagmar Droogsma
Distributors
Ministry of Economic Affairs
Cologne
Division for Strategic Trade and Sanctions
The Hague
Mrs Hedwig van Heck
German Chemical Industry Association
Mr Karel J. Hartogh
Frankfurt am Main
Ministry of Economic Affairs
The Hague
Dr. Winfried Wiegräbe
BASF Aktiengesellschaft
Mr Jan Zaadhof
Abt. Wirtschaftlichkeitsbewertung
Deputy Head of the Netherlands Delegation
D-67056 Ludwigshafen
to the PrepCom/OPCW
Ministry of Foreign Affairs
Dr. Ernst Wyszomirski
The Hague
Senior Consultant
Kelkheim Nigeria
India Dr Andrew C. Uzoigwe
General Manager & Head of Research and
Mr Prashant Yajnik
Development
United Phosphorus Ltd, Bombay
Nigerian Petroleum Corp.
The Hague
Norway
Indonesia
Mr. Harald Schiøtz
Dipl.-Ing. Susilo Martodiwirjo
Special Adviser
Member of Indonesian National Comittee for
Royal Ministry of Foreign Affairs
the Preparation of Implementation of CWC
Oslo
Head of Federation of Chemical Industries of
 Effective Implementation of the CWC
274

Mr Ivan Pellegrinelli
Federal Office for Foreign Economic Affairs
Bern

Romania Mr Urs Schmid

Mr Alexandru Diculescu Federal Department of Foreign Affairs
The Goverment of Romania Disarmament Policy and Nuclear Questions
National Agency for the Control of Strategic Bern
Exports and the Prohibition of Chemical
Weapons Mr Heiner Staub
Bucharest NC-Laboratory
Ministry of Defence
Dr Stefan Dogaru Spiez
Director General
National Agency for the Control of Strategic United Kingdom
Exports and the Prohibition of Chemical Dr Graham H. Cooper
Weapons British Embassy
Bucharest The Hague

Russia Com Ian S. Gregory

Mr Igor K. Bazarnykh Ministry of Defence
Chief of Department London
Committee on Chemical and Petrochemical
Industry of the Russian Federation Mr David Halldearn
Moscow Department of Trade and Industry
XNP Division
Mr Vladimir V. Mokrousov London
Presidential Committee on Convention
Related Issues of Chemical and Biological Dr Peter J. Plant
Weapons Manufacturing Manager,
Moscow Business Strategy Department
ZENECA Agrochemicals
Sweden Surrey
Dr. Per Runn
FOA ABC-skydd Dr John R. Walker
National Defence Research Establishment Arms Control and Disarmament Research
Department of NBC Defence Unit
Unea Foreign and Commonwealth Office
London
Prof. Dr. Thure Svensson
National Chemicals Inspectorate United States
Stockholm Mr John A. Gilbert
Manager International Programs
Switzerland Science Applications Intern. Corp.
Dr Jean-Paul Magnenat Mc Lean, Virginia
Swiss Society of Chemical Industries
Wallbach Mr Peter D. Gratton
ACDA;MA/CBP
 Conference Proceedings, Bad Homburg 8 - 10 September 1995 275

Washington PTS/OPCW
The Hague
Mr Michael P. Walls
Assistant General Counsel NGO’s
Chemical Manufacturers Association Dr. Joachim Badelt
Washington Institut für Politikwissenschaft
Pädagogische Hochschule Erfurt/Mühlhausen
Commission of the European Union Erfurt
Prof. Dr. Peter Gilsdorf Mr Steve Bowman
Director Library of Congress
Judicial Service of the Commission of the Washington, DC
European Union USA
Brussels
Dr. Hans Günter Brauch
University of Leipzig
PTS/OPCW Germany
Mr Serguei Batsanov
Director for External Relations Ms Treasa Dunworth
PTS/OPCW Researcher
The Hague Harvard Sussex Program
PTS / OPCW
Dr Félix C. Calderón The Hague
Legal Advisor
PTS/OPCW Mr Alexander Kelle
The Hague Peace Research Institut Frankfurt
Frankfurt am Main
Ms Chantal de Haas Germany
External Relations Division
PTS/OPCW Professor Dr Barry Kellman
The Hague International Human Rights Law Institute
College of Law
Dr Donald Carl Clagett DePaul University
Head, Industry Operations Branch Chicago
PTS/OPCW USA
The Hague
Ms Mitslal Kifleyesus
Mr Ian Kenyon Harvard Sussex Programme Brussels
Executive Secretary of the Preparatory PTS/OPCW
Commission The Hague/ Brussels
PTS/OPCW
The Hague Dr. Walter Krutzsch
Consultant
Mr Shabaz Berlin
Head of Technical Cooperation Germany
and Assistance Branch
PTS/OPCW Dr Thilo Marauhn
The Hague Research Fellow
Max-Planck-Institut für Öffentliches Recht
Dr Ralf Trapp und Völkerrecht
Head of Industry Verification Branch Heidelberg
 Effective Implementation of the CWC
276

Germany Mr York von Lersner

Institut für Öffentliches Recht
Mr Michael Moodie Johann Wolfgang Goethe-Universität
Chemical and Biological Arms Control Frankfurt am Main
Institut (CBACI) Germany
Alexandria, VA
USA

Dr. Harald Müller Ms Patricia Radler

Peace Research Institute Frankfurt SIPRI
Frankfurt am Main Stockholm
Germany Sweden

Mr R. Justin Smith Dr. Thomas Stock

Harvard Sussex Program CBW Project Leader
Philadelphia, PA SIPRI
USA Stockholm
Sweden
Dr. Oliver Thränert
Forschungsinstitut der Prof. Dr. Ron Sutherland
Friedrich-Ebert-Stiftung Head, Department of Chemistry
Bonn University of Saskatchewan
Germany Saskatoon, Sask
Canada
Mr Jean Pascal Zanders
Centrum voor Polemologie
Vrije Universiteit Brussels
Brussels
Belgium

Observer
Ms Heidi Blattmann
Neue Zürcher Zeitung
Zürich
Switzerland

Organizers
Prof. Dr. Michael Bothe
Institut für Öffentliches Recht
Johann Wolfgang Goethe-Universität
Frankfurt am Main
Germany

Mr Thomas Kurzidem
Institut für Öffentliches Recht
Johann Wolfgang Goethe-Universität
Frankfurt
Germany
Conference Proceedings, Bad Homburg 8 - 10 September 1995 277