The Tasks of the National Authority under the CWC: Paper 1

I. Introduction

This paper is concerned with national responsibilities under the ChemicalWeapons Convention (CWC). Each State Party to the Chemical Weapons Conventionhas agreed to a set of fundamental obligations under that Convention. AState Party accepts the basic provisions of the Convention in Article Iand will implement the obligations by taking the necessary domestic legaland administrative measures required by Article VII. It will provide thedeclarations and information required under Articles III, IV, V and VI andthis information will be subjected to the verification provisions of thesearticles using the machinery of Article VIII. The State Party also agreesto accept challenge inspection under Article IX if the need arises.

In order to do this, each State Party must:

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

National implementation regimes will differ from State Party to StateParty according to the impact of the CWC on its activities and its chemicalindustry. The nature of its National Authority will be a function of:

• possession or nonpossession of chemical weapons;
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• possession or nonpossession of chemical weapons production facilities (CWPF);
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• the potential for a State Party's chemical industry to produce chemical weapons; and
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• the nature of a State Party's chemical industry.

If we examine the responsibilities of a National Authority in some detail,it will have some or all of the following tasks in its interactions withthe OPCW:

• initial declarations under Articles III, IV, V and VI;
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• annual declarations under Articles IV, V and VI;
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• escorting OPCW inspections under Articles IV, V, VI, IX and X;
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• accrediting OPCW Inspectors;
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• developing Facility Agreements;
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• overseeing closure and destruction activities relating to CW and CWPF;
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• co-ordinating the provision of national assistance under Article X;
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• reviewing national regulations in international trade in chemicals; and
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• old and abandoned chemical weapons.

In addition to these tasks, the National Authority will have to be involvedin international activities relating to representation to the Conferenceof States Parties, the Executive Council and other activities as required.In general terms a State Party's responsibilities which will likely be delegatedto its National Authority will have two basic elements: an internal onethat involves providing information of regulatory nature to an internationalbody, and an international one where it provides technical support to itsdelegation to the OPCW.

II. Demonstration of Compliance with Article VI of the CWC

The OPCW is designed to verify that each and every State Party is incompliance with its obligations under the CWC, (i.e., the State Party willban the development, production, stockpiling, transfer and use of chemicalweapons). It is the task of each State Party to demonstrate its compliancethrough the provision of information to the OPCW via its National Authority.The major initial burden then falls on the National Authority to collectthe data and transmit it to the OPCW without sacrificing either state securityor confidential business information (CBI) in the process. The internationalverification process will fail if the national process of data collectionand transmission is not previously in place. This is particularly true sincethe CWC addresses some novel issues for an arms control agreement.

The CWC deals with the destruction of existing weapons (disarmament) andthe control of potential production of CW (arms control or nonproliferation).This extends the reach of the CWC into civilian owned chemical facilities,worldwide and requires State Parties to collect data from industry in orderto develop their declarations to the OPCW. This means that the NationalAuthority has to be able to deliver declarations 30 days after entry intoforce not only of government activities so far as chemical weapons are concernedbut also for all industrial facilities covered by Article VI. At the presenttime, few governments are aware of the range of chemicals produced in theirchemical industry or the number of chemical plants and plant sites involved.

In the near future each signatory to the CWC will have to do the following:

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

It should be noted that the constraints of Article VI fall on the industrialsector that produces or uses chemicals that appear on the schedules of theCWC. These are measures designed to show that chemicals of concern to theCWC are not misused or diverted to purposes banned by the CWC. The chemicalson 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 routinemonitoring of "dual use" industrial chemicals, their productionand processing facilities. Verification will be difficult since (i)many of the scheduled chemicals have legitimate commercial uses, (ii)many of the known chemical weapons could be made in commercial chemicalfacilities

III. Industry and Declarations under Article VI of the CWC

After the appropriate implementing legislation, declarations and inspectionswill be mandatory for companies that produce, import or export chemicalslisted in schedules 1, 2 and 3 in quantities above the thresholds specifiedin the CWC. This also applies to companies that process or consume quantitiesof schedule 2 chemicals above the thresholds stated. Besides the producersof industrial chemicals, the following could be involved: pharmaceuticals,mining, paper, textiles, plastics, printing inks, semi-conductors, electronics,etc. Also, companies that produce discrete organic chemicals in quantitiesgreater than 200 metric tonnes must declare these facilities or, if theirproducts contain phosphorus, sulphur or fluorine, over 30 metric tonnes.Facilities that produce pure hydrocarbons or explosives are excluded. Thisinformation can only be obtained from industry in the first instance. TheCWC 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 officefor implementation if the former does not yet exist) must:

• ascertain national trade in schedule 2, 3, and 'other discrete organic chemicals';
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• ascertain imports and exports in schedule 2 and schedule 3 chemicals;
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• 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 beforeimplementing legislation is available but national organizations involvedin production, consumption, and processing of chemicals as well as organizationsof importers and exporters of chemicals should be contacted to obtain aframework from which to estimate the potential workload of the NationalAuthority.

The PrepCom is preparing a Declaration Handbook for all required declarationsof the State Party but this is unlikely to be directly useful for obtaininginformation from industry. There will be a need for the National Authorityto work with industry on the best format for data transfer of informationon specific scheduled chemicals. This should ideally be done before entryinto force since (1) the type of information and level of detailhas not been required previously, (2) there will likely be a substantialerror load while the system is being worked out, and (3) the agencycollecting the data will have little prior experience with both the dataand the software involved. This will be an area where trial data collectionand transfer should be carried out especially to develop ways in which CBIshould be protected.

IV. Industry and Inspections under Article VI of the CWC

Once a State Party provides its declarations to the OPCW, these willbe verified in part by on-site inspections by the Technical Secretariat.The Convention provides for various levels of access but industry has rightsas to the extent of the inspection process. A major task of the NationalAuthority will be to assist the facility operators in this regard. Facilitiesthat produce schedule 1 chemicals can be inspected at anytime, and thereis no limit on the actual number of inspections per annum. Individual schedule2 or 3 plants can receive a maximum of two inspections per year. Plantsthat produce `other discrete organic chemicals' will not be inspected duringthe first three years, but the total annual number of inspections for schedule3 and these other facilities is 20 or 3 plus 5% of the total number of theplant sites declared whichever is smaller. There is also a time limit asto how long inspectors from the OPCW can spend at an individual site unlessthe National Authority agrees to an extension. The time limit is 96 hoursfor schedule 2 and 24 hours for schedule 3 or other relevant facility althoughit is not entirely clear what 96 or 24 hours means in terms of actual inspectiontime (i.e., does this imply continuous inspections or normal working hoursencompassed by that period?).

During the first three years after entry into force, all commercial facilitiesthat produce, process or consume schedule 2 chemicals above the thresholdshould undergo an initial inspection during which negotiations will commenceon a Facility Agreement. This will be negotiated between representativesof the OPCW and the National Authority with assistance from the plant management.The document should be agreed within 90 days or further inspections willinvolve "managed access". The Facility Agreement is for the plantsite which contains the plant. The document specifies which parts of thesite apart from the plant are of concern to the inspectorate and so mayform part of the routine inspection pathway. It limits the activities ofthe OPCW inspectors at the plant and plant site as well as the obligationsof the management to provide information and samples to the OPCW team throughthe National Authority. The inspectorate will have automatic access to thedeclared site as described in the Facility Agreement with access to otherparts of the plant site as agreed with the National Authority if it is necessaryto clarify any ambiguities that result from the inspection.

Schedule 3 facilities are also subject to routine inspections after entryinto force, but there is an initial priority for schedule 2. There is norequirement for a formal initial inspection nor for a Facility Agreementalthough one can be requested by the facility management. The inspectionregime for "other chemical production facilities" will not beginuntil four years after entry into force and then only after a decision bythe Conference of States Parties.

There is also a provision for short notice inspections at any site, declaredor undeclared, and at government or privately owned facilities. These arecalled "challenge inspections". There has to be suspicion thatactivities prohibited by the CWC are being undertaken at the site, and suchsuspicion has to be documented by the challenging State. The National Authorityhas the major responsibility to ensure that the inspection results are unambiguousand that the challenged State is in compliance with its CWC obligations.There are complex procedures to balance necessary intrusiveness with legitimateconcerns over either national security or trade secrets (CBI). These inspectionsshould be rare at commercial locations.

In terms of the access requirements during inspection, there are specificrights for the facility operator, and it is the task of the National Authorityto ensure that these rights are respected. There is a right to protect confidentialequipment, data and information not related to declared activities, (i.e.,the facility has the right to shroud equipment or remove data before grantingaccess to the OPCW inspectors). There is the concept of "managed access"by which access is limited by negotiation either before or during an inspection.If the OPCW inspectors feel that they need further access to other partsof a facility to clarify ambiguities or any disagreement between the inspectorateand the facility, this would have to be resolved by the representativesof the National Authority. The inspectorate, too, has specific rights ofaccess to equipment and personnel in order that it may verify the substanceof the declaration made at a specific location, but the team must not compromisesafety at the plant site either by their actions or requests.

Any company that provides declarations to its National Authority must preparefor inspections. This should be done with the National Authority. Therewill be a need to protect confidential business information, to providebackground for the negotiation of a Facility Agreement and to develop apre-inspection assessment. The National Authority can assist based on thetype of declarations to be made. Such preparations could include trainingof plant personnel and plant escorts, assessment of the types of informationto be protected and the development of routes for OPCW inspectors to followin the plant. There will be a need to decide on the nature and extent ofconfidential business information at the plant level as well as mechanismsto ensure its security.

V. Conclusions

The National Authority is central to the success of the Chemical WeaponsConvention. This is most obvious in the monitoring of the chemical industryto ensure the nonproduction of chemical weapons either advertently or inadvertently.This monitoring process will last in some form or another for the lifetimeof the Convention since all existing chemical weapons and production facilitieswill be destroyed within 10 to 15 years after entry into force.

Each signatory State must give careful thought as to the structure and locationof its National Authority within government. Its relationship with thoseindustries that produce, process or consume chemicals that appear on theCWC's schedules as well as those who import or export these chemicals iscrucial to the State's ability to demonstrate compliance with the obligationsunder Article VI of the Convention.

The magnitude of the task will be directly related to the nature of thechemical industry in each specific country and will be complicated by thefact that the chemical industry is a dynamic one driven by the need fornew products and new markets. The fact that few, if any, of the chemicalson the schedules are produced presently at a given location does not meanthat they will not be produced there in five years time.

At present few countries have the ability to collect the data required bythe CWC nor do they have the necessary trained personnel to assist theirindustry and escort the OPCW's inspectors. The preliminary questions include:

• how many companies, plant sites and plants have to be declared;
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• how many scheduled chemicals are produced and traded;
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• how and when will industrial information be collected to develop national declarations;
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• how large an organization will their National Authority be and how much will it and the CWC cost the State Party;
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• what kinds of training and expertise will be required by: (i) staff who deal with declarations, and (ii) inspectors (escorts); and
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• how will industry be informed of its rights and obligations under the CWC and national implementation legislation.

Annex I - Definitions

Schedule 1: known chemical warfare agents and key precursors to suchagents. Little commercial use.

Schedule 2: compounds that are both key precursors and have moderatecommercial utility.

Schedule 3: some utility (precursors) for the production of chemicalwarfare agents but are mostly prepared in large commercial quantitites.

Production: of a chemical means its formation through a chemicalreaction.

Processing: of a chemical means a physical process, such as formulation,extraction and purification, in which a chemical is not converted into aanother chemical.

Consumption: of a chemical means its conversion into another chemicalvia a chemical reaction.

Facility: means any of the industrial sites as defined in the definitionof plant site, plant and unit.

Unit: the combination of those items of equipment, including vesselsand vessel set up, necessary for the production, processing or consumptionof a chemical.

Plant: is a relatively self-contained area, structure or buildingcontaining one or more production or process units with auxiliary and associatedinfrastructure.

Plant site: is the local integration of one or more plants with acommon infrastructure.

Facility: is an agreement or arrangement between a

Agreement State Party and the OPCW relating to a facility that is subjectto on-site verification, in this case under Article VI.

Discrete organic chemicals: means any chemical belonging to the classof compounds consisting of all compounds of carbon except for its oxides,sulfides and metal carbonates, identifiable by chemical name, bystructuralformula, if known, and by Chemical Abstracts Service registry number, ifassigned. Pure hydrocarbons and explosives have also been excluded.

Thresholds: there are specific thresholds of activities with scheduledchemicals before reporting is required. These are schedule 1 (100 gram),schedule 2A (100 kg except for BZ where it is 10 kg) Schedule 2B (1 tonne),schedule 3 (30 tonne) other discrete organic chemicals (200 tonne) and PSFchemicals (30 tonne).

Annex II

A Preliminary Estimate of Chemical Production in Latin America andthe Carribean*

Some estimates can be made on chemical production by examining handbooksthat indicate the commercial availability of specific chemicals. If we lookat a well known directory**, it shows that there are some 5, 625 companiesin 60 countries that are willing to market chemicals including those foundon schedules 2 and 3.

If we abstract the pertinent information from it we can develop the followingtable:

LATIN AMERICA

Country Producers Inspections % Total

Argentina 126 9 2.4

Bolivia 3 3 0.6

Brazil 233 15 4.43

Chile 13 4 0.25

Columbia 25 4 0.48

Ecuador 8 3 0.15

Mexico 200 13 3.8

Peru 27 4 0.51

Venezuela 24 4 0.46

TOTAL 659 59 13.08