CWC Implementation Country Studies - Finland

PATRICIA RADLER AND PETRA PREISLER


Introduction

Finland ratified the Chemical Weapons Convention (CWC) on 7 February 1995.(1)
In Finland an international treaty becomes national law after it is approvedor ratified by
the President or the Parliament. When the CWC enters into force for Finlandthe
information will be published in a decree in the code of statutes and thetranslated
Convention text (Finnish and Swedish) is published with the decree in theOfficial
Gazette.

Since Finland applies the dualistic system in implementing internationaltreaties,
the CWC will not automatically be part of Finland's legislation. The CWChas to be
incorporated into Finnish law through decrees that explain how to applythe
Convention. (2) When the CWC enters into force, its provisions may not contradict
already existing legislation. Thus, legislation had to be amended to complywith the
provisions in the CWC.

In general, the required legislation can be amended by creating new actsor existing
acts may be amended to correspond with the text of an international treaty.Finland
has chosen to create a new act, i. e., the Act on the Approval of CertainProvisions of
the Convention on the Prohibition of the Development, Production, Stockpilingand
Use of Chemical Weapons and on their Destruction and on its Application(CWC-Act)
and amended and/ or kept existing acts. Other already existing acts (anddecrees)
which are of concern to the implementation of the CWC are, for example,the Penal
Code and the Chemicals Act, (3) the Act on the Export and Transit of DefenceMaterial, (4)
Customs Act, (5) the Act on Safeguarding the Foreign Trade and EconomicGrowth, (6)
and the Decree on Export Control of Certain Items. (7) The latter ones concernexport
and import. The Penal Code prohibits whomsoever to use, develop, produceor
otherwise acquire, stockpile or retain or transfer CW, or engage in a military
preparation to use CW. (8) The CWC- Act enters into force on the date stipulatedby
decree. However, measures needed to prepare the enforcement of the CWC-Act can
be taken before the act enters into force. (9 )

The relations of Finland with foreign powers are governed by the Presidentof
Finland. However, treaties concluded with other foreign states must be approvedby
Parliament if they contain provisions within the legislative sphere or ifthe consent of
Parliament is otherwise required by Finland's constitution. (10)

The Foreign Affairs Committee ordinarily prepares the matters relating tothe
ratification or introduction of a treaty. (11) The Government has issueda bill proposal
concerning provisions in the CWC belonging to the legislative sphere (forexample:
setting up a National Authority, provisions for declarations, verification)to the
Parliament for approval. After the approval of the CWC- Act by the Parliament
Finland's President ratified the CWC. (12)

At the point when the Finnish and Swedish CWC text is published in the Official
Gazette, it is ranked equally with other national legislation and has tobe applied in
accordance with its provisions therein. When these measures are taken theCWC is
equally ranked with national law as well.

In keeping with international norms, Finland does not posses any chemicalweapons
(CW) and has no intention to get any. (13) Thus, the obligations under theCWC will
mainly refer to Article VI i. e., non- prohibited activities. Finland hasnot a substantial
chemical industry producing chemicals or precursors listed in Schedules1- 3 under the
CWC. However, a few of the listed chemicals are in limited use at some facilities(14)
and additionally, Finland imports some Schedule 3 chemicals. (15) In all,Finland
possesses around 450 chemical industry companies. (16) Only about 10 ofthese
companies are affected by the CWC. However, there are plant sites producing
unscheduled discrete organic chemicals (DOC) at thresholds requiring declarations.(17)
The number of declarations may differ from year to year depending on thequantity of
production. (18)


Main provisions

General aspects

As Finland does not possess any chemical weapons nor has an extensive chemical
industry it will foremost be concerned with provisions under Article VIof the CWC,
which deals with activities not prohibited under the Convention and ArticleIX,
possible challenge inspections.

Finland has created a new act, the CWC- Act, and also uses existing actsand
decrees to nationally implement the CWC. The CWC- Act is approved by Parliament
and will enter into force at a date stipulated in decree (most certainlyat the same date
as the CWC enters into force). The CWC- Act contains provisions regarding
responsible authorities, exchange of information, licenses, inspections,confidentiality
and import and export of chemicals. The police, the supervisory authoritiesreferred to
in the Chemicals Act (19) and, in respect of import and export of chemicals,the National
Board of Customs and the Border Guard Service shall provide executive assistance
for the supervision of compliance with, and the implementation of, the CWC-Act and
rules and regulations issued under it. (20)

The National Authority

The Ministry of Foreign Affairs shall be responsible for the national implementation
of the Convention. It shall further serve as the National Authority (NA)referred to
under Article VII of the Convention. The Finnish NA shall operate as thepoint of
liaison with the Organisation for the Prohibition of Chemical Weapons (OPCW),as
well as with other States Parties. (21) However, as the Ministry of ForeignAffairs does
not possess the means that are required in the implementation process, suchas the
carrying out of inspections and collection of information from the chemicalindustry,
it shall be assisted by the Finnish Institute for Verification of the ChemicalWeapons
Convention at the University of Helsinki (VERIFIN) (22) The VERIFIN shallforemost
be concerned with verification, analysis of information and research.

The Ministry of Trade and Industry shall be responsible for the supervisionof
export products (23) other than defence materials, which is the responsibilityof the
Ministry of Defence. (24) The NA will further be assisted by the NationalAgency for
Medicines which will function as a licensing authority referred to in Section4 of the
CWC- Act. (25) All these authorities are the supervisory authorities underthe CWC- Act.

Collection of Information

As regards the collection of information, sections 3 and 7 of the CWC- Actare of
main concern. Section 3 enacts that the supervisory authorities, (26) notwithstandingthe
provisions of confidentiality, shall have the right to obtain informationfrom other
authorities when necessary for supervision in conformity with the Conventionor this
Act. The reason behind this provision is to avoid any overlapping. (27)Relevant
information on chemicals and the chemical industry is already being collectedby
different authorities. The information is, for example, found in the chemicalslist
referred to in the Chemicals Act. (28) The chemicals list and its subfilescontain
information on: 1) production, (29) 2) new materials, (30) 3) poison chemicals,(31)
4) chemicals that are used for protective purposes, (32) 5) licenses touse chemicals and
reports on any changes in the use of chemicals. (33)

Section 2 Subsection 2 of the CWC- Act states that the supervisory authorities(34) shall
have the right, notwithstanding the provisions of confidentiality, to forward
information to the OPCW (35) and other States Parties. (36) The intentionis that the
collected information shall be kept confidential to the extent possible.
The obligation to submit information is further treated in Section 7 ofthe CWC-Act,
which reads as follows:

'Whosoever, in the performance of work connected with this Act or with theapplication of
the Convention, has obtained information regarding professional or businesssecret of another
person, shall not reveal or use such information without consent. Informationreceived from
the Organisation for the Prohibition of Chemical weapons and defined asconfidential shall
not be revealed or used contrary to the Convention. '

Continuos relevant information on the chemical industry is required to thesuccess
of the Convention. Moreover, it is anticipated that annual declarationson production,
use, consumption exports, imports etc. of scheduled (and other) chemicalsare to be
submitted to the OPCW. It is the responsibility of users of the relevantchemicals to
forward such information to the VERIFIN referred to in section 2. (37) Further,Section 7
suggests that more detailed provisions regarding the submission of chemicalsshould
be provided by decree. Up to date there is no decree on this subject.

Verification Inspections

The Finnish CWC- Act has one section regulating inspections, both routineand
challenge inspections. It also provides for national inspections. The GovernmentBill
Proposal also spells out the need for Facility Agreements.

Routine Inspections/ Challenge Inspections

The Convention addresses provisions concerning routine and challenge inspections.
Routine inspections concern chemical plants, plant sites, laboratories etc.of which
information has been submitted to the OPCW. Each State Party also has theright to
demand challenge inspections on another State Party's territory. Routineinspections
as well as challenge inspections shall be executed by the OPCW.

Section 5 of the CWC- Act prescribes both challenge and routine inspections.It will
be described below what measures the CWC- Act proposes in order to complywith
the Convention. Representatives from the Ministry of Foreign Affairs and/or the
VERIFIN, inspectors from the OPCW (and the Observer referred to in ArticleIX,
paragraph 12 of the CWC) have the right to carry out inspections, be itroutine or
challenge. To ensure the survival of the Convention in Finland the NA willhave the
right to demand national inspections in order to supervise the law. (38)However, such an
inspection has to be executed with respect of the principles spelled outin the
Convention and in Section 5 Subsection 1 of the CWC- Act. (39) The needfor these
inspections will probably not be significant in Finland. (40)

Section 5 Subsection 1 of the CWC- Act suggests directions to conduct inspections
in accordance with the Convention, that is routine inspections (41) andchallenge
inspections. (42) The following presents detailed information on the provisionsregarding
the inspection rights. The inspectors shall

'have access to an area, a building, a factory or other facility which maybe subject to an
inspection under the Convention. ' (43)

As regards routine inspections the inspection areas are decided upon inadvance by
a facility agreement between the inspected state (i. e., the NA) and theOPCW or
based on the declarations submitted by the state. But a state shall havethe right to
protect confidential information that is not connected to CW (also in casesof a
challenge inspection). (44) In connection to inspections, be it routineor challenge,
inspectors shall further have the right:

'' to access to an area, a building, a factory or other facility which maybe subject to an
inspection under the Convention. ' (45)

'' to stop and inspect goods traffic to and from the inspected site. ''(46)
This can be done by traffic registration, photographing of vehicles, orchemical
sensors. (47)
Section 5 subsection 1 (3) gives the right:

'' to receive or take samples and photographs or other visual records ofthe inspection site. ' (48)

This is be made either by the personal at the inspection site or by representativesof
a State Party. Samples and photographing shall, in order to guarantee thatan
inspection is made to the extent required by the Convention, be made bythe
inspection team.
According to Section 5 Subsection 1 (4) the right is given

'' to bring to the inspection site measuring devices or other technicaldevices necessary for the
acquisition or registration of information, and to use such devices therein.'

The inspection team may also use devices of the inspected facility. (49)

Subsection 1 (5) finally suggests that the inspectors shall have the right
'' to obtain from the establishment to be inspected or from a person inits employ the
information necessary for the carrying out of the inspection. '

The management of the facility or its employees shall, if possible, havethe right to
express its opinion before the inspection is carried out. (50) If the objectives,obligations
or time frames of an inspection would be jeopardised by this right, themanagement or
its employees shall not be heard. (51)

Inspections are not allowed to be carried out in private homes. (52) However,
according to the Act on Means of Coercion, (53) a house- visitation maybe provided for,
if there is a suspicion that any activity prohibited under the CWC is carriedout
there. (54)

Additionally, Finnish law requires the inspected facilities to pay the InspectedState
Party inspection costs.

Facility Agreements and Confidential Business Information

None or a very limited number of facilities are required to conclude a Facility
Agreement. This is a consequence of Finland's nature as regards chemicalindustry.

Because of the comprehensive powers anticipated by the Convention, certain
limitations as regards inspection rights have been suggested in the GovernmentBill
Proposal in order to diminish inconveniences of inspections. However, inspections
must always correspond with the provisions under the Convention. (55) TheGovernment
Bill Proposal addresses the facility agreement issue indirectly. As regardsroutine
inspections, the facility agreement sets out in advance the exact areasto be inspected.

The facility agreement should provide for detailed provisions concerningthe
protection of sensitive premises and installations and confidential information.(56)

As regards confidential business information (CBI) during a challenge inspection,
there has to be a right for the inspected facility to protect installationsor machines, as
for example shroud or take away confidential information, which is not relatedto
CW, or if the protected information is the reason of the challenge inspection.(57)

Activities that Require Permission

Section 4 for of the CWC- Act enacts that any activities involving Schedule1
chemicals require a licence. Chemicals under Schedule 1 may only be usedfor
research, medical and pharmaceutical reasons and protective purposes. Thelicence
requires that certain quantities are not exceeded. Also, there are strictexport
limitations on these chemicals.

The Finnish National Defence Research Establishment is the only body using
Schedule 1 chemicals (only for research purposes). It is suggested thata decree shall
be enacted to give the National Defence Research Establishment the statusof a
'single small- scale facility'. (58)

Schedule 1 chemicals are also used for research, medical and pharmaceutical
purposes. However, the quantities do not exceed the thresholds under theConvention
(less than 100 g annually). In order to ensure continued observations ofthe
declaration obligations and the approval of facilities, the Government Billproposes
that production, acquisition, storage, or other usage of Schedule 1 chemicalsshall
require licence in all cases where the amount exceeds annually 100 gramsper facility
and establishment. (59)

The National Agency for Medicines shall be the responsible authority forthe
permission of licenses. It is suggested that a decree should be enactedwhich provides
for detailed provisions regarding the conditions for licenses and its procedures.(60) One
condition for receiving a licence should be that the supervisory authoritiesmentioned
in Section 2 (CWC- Act ) have to recommend the permission of the request.

Export Controls

The Convention regulates exports and imports of chemicals that are essentialto CW
production. Finland is party to other international arrangements, whichalready limits
exports and imports of chemicals. (61) Applicable legislation is the Acton Safeguarding
the Foreign Trade and Economic Growth. (62) This Act gives a general mandatefor
export and transit controls of products and related services as specifiedin the
subordinate Decree on Export of Certain Items (63) and in the Decision ofthe Ministry
of Trade and Industry (MTI) under the Decree. The Decree and the Decision,inter
alia, cover the dual- use items controlled by the CWC and Australia Group.The type
of control is mandatory export licenses for products and related technologiesspecified
in the MTI Decision (also transit of these items through Finland is controlled),
established rules for end- use/ end- user clarification with a possibilityfor post-shipment
controls, penalties and a catch- all clause. The export licenses are givenfor a
certain time period and conditions for the use of the chemicals may be required.The
Ministry of Trade and Industry is the responsibly authority to grant theexport
licenses.

Further, Finland has in force export controls which are based on the Acton the
Export and Transit of Defence Materiel, the accompanying Decree on the Exportand
Transit of Defence Materiel and also the Decision of the Ministry of Defenceon the
Precursors of Chemical Warfare Agents. (64) The Act contains general provisionson
licensing procedures, sanctions and supervision, the Decree gives the categoriesof
defence materiel and the Decision contains the materiel to be controlledunder the
Decree. The main function is to regulate and control the export and transitof
conventional arms. CW materiel has been incorporated and provisions on licensing,

'... Anyone who produces, imports, exports, stores, transfers, possesses,keeps or in any other sense referred to in the law deals with chemicals.' sanctions and supervision are properly applicable for CW as well. Thelegislation is administered and implemented by the Ministry of Defence inconsultation with the Minister of Foreign Affairs. It is supervised by theCustoms Authority. (65)
Finland already has extensive export controls. However, in order to complywith
the Convention it has been suggested that provisions on the restrictionsunder the
Convention, concerning exports and imports of chemicals should be enactedby
decree. (66) Moreover, in order to avoid overlapping of export control regulationsthe
provisions in the Act on Safeguarding the Foreign Trade and Economic Growthand
in the Act on the Export and Transit of Defence Materiel and in the rulesissued under
them shall be applied to the import and export of chemicals governed bythe
Convention, where appropriate. (67)

In case of violations of the export controls, measures will be taken underthe Penal
Code, (68) and the Act on the Export and Transit of Defence Material. (69)These penal
provisions should not be applied where the crime is a violation againstthe prohibition
of CW. (70)

Penal Sanctions

The CWC anticipates that Member States shall prohibit all natural and legalpersons
anywhere on its territory or elsewhere under its jurisdiction and controlfrom taking
such actions prohibited under the Convention. (71) A State Party has toinitiate penal
legislation relating to such activities. (72)

At this moment Finnish penal legislation applies to infringements accomplishedby
Finnish citizens or foreigners permanently living in Finland regardlessof where the
offence has taken place. (73) It was suggested to introduce a so calleddouble penalty,
which implies that an offence shall be penalised according to the law (1)of Finland, if
the perpetrator is Finnish citizen or foreigner living in Finland and (2)where the
infringement has taken place as well. As not all states have ratified theConvention,
the double penalty would not fulfil the standards of the Convention, sinceonly State
Parties are subject to the Convention. (74)

To fulfil the requirements of the Convention, it is suggested that regulations
concerning the applicability of the Finnish penal legislation shall be complementedso
that the 'Principle of Universality' shall be applicable to violations ofthe
Convention. (75) Infringements of the Convention have to be incorporatedin the Penal
Code (Chapter 1, Section 3 subsection 2) which lists violations under theCWC by which
Finnish legislation may be applicable even if the perpetrator is a foreignerand
the action is not criminal according to the legislation of the state wherethe crime took
place. The complement to Chapter 1, Section 3, subsection 2, paragraph 1reads as
follows:

'.... a foreigner may be sentenced according to Finnish legislation evenif the crime is not
criminalized at the perpetrator place if the crime is .... violation ofthe prohibition of CW. ' (76)

The suggested revision implies that Finnish penal legislation would be applicableto
violations of the Convention regardless of where the violation took place,the
citizenship of the perpetrator, and of the penal legislation of the otherstate. (77)

Conclusions

Finland has issued a new CWC- Act including provisions on responsibly authorities,
exchange of information, licenses, inspections, confidentiality and exportand import
of chemicals. A decree with detailed provisions will follow. The enteringinto force of
the CWC- Act will be decided by decree (on the same date as the CWC entersinto
force). Other important act as concerns export controls are the Act on Safeguarding
the Foreign Trade and Economic Growth (and the Decree on Export of CertainItems)
and the Act on the Export and Transit of Defence Material. The Ministryof Trade and
Industry and the Ministry of Defence are responsible for export supervision.

The Ministry of Foreign Affairs is appointed the National Authority andwill be the
point of liaison with the OPCW. However, the day- to- day work will be accomplished
by the VERIFIN.

The collection of information on chemicals and the chemical industry isalready
taking place in Finland. The information should be forwarded to the VERIFINwhich
at the entering into force of the CWC will forward it to the OPCW. Detailed
provisions will be provided for by decree.

The CWC- Act does not make a distinction in the procedure of challenge and
routine inspections.

The CWC- Act does not explicitly spell out the need for Facility Agreements.
However, Facility Agreements are mentioned in the Government Bill Proposal.The
reason for this, is probably that Finland does not have a substantial chemicalindustry
and none or very few of these facilities require the conclusion of FacilityAgreements.
To ensure the survival of the CWC the National Authority has the right todemand
for national inspections.


Footnotes:

1 Finland became the 23d ratification State.
2 As for example which chemicals that are included, obligations for theindustry.
3 Kemikalielag, 14. 8. 1989/ 744 and its decree Kemikalieforordning, 29.6. 1990/ 620.
4 Lag om export och transitering av forsvarsmateriel, 9. 3. 1990/ 242 andits decree forordning om export och transitering av forsvarsmateriel, 24.3. 1995.
5 Tullag, 29. 12. 1994.
6 Lagen om tryggande av landets ekonomiska tillvaxt, 154/ 74.
7 Forordning om export kontroll av vissa varor, 431/ 94 (amended 870/ 95).
8 Penal Code, Chapter 13 Section 4 a; enters into force on the date stipulatedby decree.
9 Section 14, CWC- Act. 1

10 Constitution Act of Finland (17 July 1919/ 94), Section 33; However,the Constitution does not define when a
treaty comprises areas which belongs to the legislative sphere.
11 Parliament Act (13 January 1928/ 7) Section 48.
12 7 Feb. 1995.
13 Gov. Bill proposal, 2.3. p. 3.
14 Gov. Bill proposal, 2.4. p. 5.
15 Gov. Bill proposal, p. 11.
16 The production was 40 million Finnish marks in 1994.
17 From about five facilities.
18 It concerns about five plant sites. The production may be below the thresholdsin the CWC required for declarations.
19 Kemikalielagen, 744/ 89.

20 CWC- Act, Section 6.
21 CWC- Act, Section 2.
22 CWC- Act, Section 2 subsection 2; Helsingfors universitets verifikationsinstitutfor konventionen mot kemiska vapen. It has, together with its predecessor,the CW project more than 20 years of experience as regards verificationof CW and research in that field.
23 CWC- Act, Section 2 subsection 3.
24 ibid., Act 242/ 90 on the Export and Transit of Defence Material, amendedby 197/ 95, Section 2. 25 Government Bill proposal, p 15.
26 The Ministry of Foreign Affairs, the VERIFIN, the Ministry of Trade andIndustry and the Ministry of Defence.
27 Gov. Bill proposal, p. 15.
28 Kemikalielagen, 744/ 89, Section 58 and p. 15 in the Gov. Bill proposal.
29 Responsibility of the Board on Industrial Welfare Safety.

30 Responsibility of the Social and Health Welfare Board.
31 Ibid. 3
32 Responibility of the Environment and Water Board.
33 Responsibility of the Technical Control Central for Licenses and Reportsof Changes.
34 The Ministry of Foreign Affairs, the VERIFIN, the Ministry of Trade andIndustry and the Ministry of Defence.
35 Art. VIII CWC.
36 Art. VII CWC.
37 Ibid.
38 CWC- Act Section 5 subsection 2. The national inspectors have the sameright as international inspectors as concerns routine and challenge inspections.The intention is to conduct national routine inspections to verify declarations.But it is not foreseen to conduct national challenge inspections. This isan explanation to industry which rights the inspectors will have.
39 Ibid.

40 Gov. Bill proposal, p. 18.
41 Article IV CWC.
42 Article IX CWC.
43 CWC- Act Section 5. Subsection 1.
44 Gov. Bill proposal, p. 17.
45 Section 5 subsection 1 (1).
46 Section 5. Subsection 1 (2).
47 Gov. Bill proposal, p. 17.
48 Ibid. CWC- Act, Section 5 Subsection 3.
49 Gov. Bill proposal, p. 18.

50 CWC- Act Section 5 subsection 2
51 Act on Administrative Procedures (lagen om frvaltningsfrfarande), Section15.
52 CWC- Act Section 5 subsection 3.
53 Lagen om tvÂngsmedel, Chapter 5.
54 Gov. Bill proposal, p. 18.
55 Gov. Bill proposal, p. 16.
56 Gov. Bill proposal, p. 17.
57 Ibid.
58 Gov. Bill proposal, p. 16.
59 The definition of 'verksamhetsidkare' shall correspond to that of theChemicals Act Section 14.

60 Gov. Bill proposal, p. 16.
61 Finland became a member of the Australia Group in December 1991.
62 Lagen om tryggande av landets utrikeshandel och ekonomiska tillvxt, 157/74 amended 506/ 92 and 331/ 94.
63 Frordning om exportkontroll av vissa varor, 431/ 94 amended 870/ 95.
64 Lag om export och transitering av frsvarsmateriel, 242/ 90 amended 197/95, Frordning om export och transitering av frsvarsmateriel, 267/ 90 amended409/ 95, and the Decision of the Government as of 24 March 1995, 474/ 95concerning general directives on export and transit of defence material.
65 Finnish Export Control for Defence Material.
66 CWC- Act. Section 10. Subsection 1.
67 Ibid. Subsection 2.
68 Chapter 46 Sections 1- 3 (fines or imprisonment for 4 months up to 4years); and also see the Act on Safeguarding the Foreign Trade and EconomicGrowth Section 8; Sanctions for violations of dual- use export controls.
69 Section 7, fines or maximum 4 years of imprisonment.

70 Penal Code, Chapter 13 and Section 4 (a); enters into force at the pointdecided by decree.
71 Article VII 1 (a); Article I CWC states which activities it prohibits:A Contracting Party must not under any circumstances use CW (I. 1 b), develop,produce, otherwise acquire, stockpile or retain chemical weapons, or transfer,directly or indirectly, CW to anyone (I. 1. b), engage in military preparationsto use CW (I. 1. c), assist, encourage or induce, in any way. anyone toengage in any activity prohibited to a State Party under this Convention(I. 1. d), use riot control agents as a method of warfare (I. 5).
72 Ibid.
73 Penal Code, Chapter 1 Section 2.
74 Government Bill p. 21- 22.
75 Ibid. p. 21, implying that the jurisdiction of a state is broadened tocrimes independent where the crime took place, perpetrator and the legislationof the place in which the crime was committed.
76 Penal Code Chapter 1. Section 3. subsection 2
77 Ibid. 9