The National Authority: Some Important Issues to be Addressed: Paper 10

Project on Chemical and Biological Warfare

THOMAS KURZIDEM, PATRICIA RADLER, THOMAS STOCK AND RONALD SUTHERLAND

I. Introduction

This paper is concerned with national responsibilities under the ChemicalWeapons Convention (CWC). In a first part a short overview of the tasksof a National Authority shall be given. The following parts will addresstwo specific problems relating to the work of a National Authority: (a)the role and function of national inspectors (escort teams) and (b) thequestion of Facility Agreements.

II. The Tasks of a National Authority under the CWC

Each State Party to the Chemical Weapons Convention has agreed to a setof fundamental obligations under that Convention. A State Party acceptsthe basic provisions of the Convention in Article I and will implement theobligations by taking the necessary domestic legal and administrative measuresrequired by Article VII. It will provide the declarations and informationrequired under Articles III, IV, V and VI and this information will be subjectedto the verification provisions of these articles using the machinery ofArticle VIII. The State Party also agrees to accept challenge inspectionunder Article IX if the need arises.

In order to do this, each State Party must:

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 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;
possession or nonpossession of chemical weapons production facilities (CWPF);
the potential for a State Party's chemical industry to produce chemical weapons; and
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;
annual declarations under Articles IV, V and VI;
escorting OPCW inspections under Articles IV, V, VI, IX and X;
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;
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 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.

Demonstration of Compliance with Article VI of the CWC

The OPCW is designed to verify that each and every State Party is in compliancewith its obligations under the CWC, (i.e., the State Party will ban thedevelopment, production, stockpiling, transfer and use of chemical weapons).It is the task of each State Party to demonstrate its compliance throughthe provision of information to the OPCW via its National Authority. Themajor initial burden then falls on the National Authority to collect thedata 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 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 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;
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 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) manyof the scheduled chemicals have legitimate commercial uses, (ii) many ofthe known chemical weapons could be made in commercial chemical facilities

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';
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 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.

Industry and Inspections under Article VI of the CWC

Once a State Party provides its declarations to the OPCW, these will beverified in part by on-site inspections by the Technical Secretariat. TheConvention 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.

Final remarks on the tasks of a National Authority

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

III. The role and function of national inspectors

This section will primarily address the tasks that inspectors of a NationalAuthority would have to undertake under the relevant parts of the VerificationAnnex (i.e., Part II, General rules of verification; Part VII, Regime forSchedule 2 chemicals and facilities related to such chemicals; and PartVIII, Regime for Schedule 3 chemicals and facilities related to such chemicals).Since no inspections under Part IX (Regime for other chemical productionfacilities) are anticipated until the beginning of year 4 after entry intoforce, this Part IX is not addressed in this section. Part VI is also notdiscussed since Schedule 1 chemicals are unlikely to be a concern of a civilianagency in the first instance, (i.e., in that case inspectors (escorts) willlikely be provided by a military agency). Some consideration is given tothe obligations of a State Party regarding Part IV (B) of the VerificationAnnex (Old chemical weapons and abandoned chemical weapons).

There are two aspects to consider: the declarations made under Article VIand the routine, random inspections of declared sites. This paper is notconcerned with the personnel involved in providing declarations to the Organizationfor the Prohibition of Chemical Weapons (OPCW) but with the staff involvedin escorting the International Inspectors of the OPCW. This group (referredto as escorts in the CWC) in fact has a much broader role to play in demonstratingcompliance with the CWC and its annexes. Any information required by theInternational Inspectorate during an inspection could only be acquired byand through the representatives of the National Authority present, thatis, the national inspectors (escorts). It follows that these individualswill need to have an understanding of the CWC, the national obligationsand the specific industrial plant sites under inspection. This implies aknowledge of the industrial processes involved, the regulatory nature ofthe CWC and national implementation legislation, and an ability to conveyto the industrial operators both their rights and obligations during anindustrial inspection.

The competence of the national inspectors will need to be similar to thatof the OPCW inspectors. They will be required to have detailed knowledgeof all facilities that produce, process and consume Schedule 2 and 3 chemicalsabove the specified threshold, since these plant sites will be liable toon-site inspections. There are three parts of the Verification Annex ofwhich the national inspectors will be required to have detailed knowledgeof - Parts II, VII and VIII.

In general, an inspection starts with notification of the intended arrivalof the OPCW team at a point of entry (POE) so that it can reach the inspectionsite within a further 12 hours. This is where the duties of the nationalinspectors start. The team will have brought with it 'such equipment whichthe Technical Secretariat has determined to be necessary to fulfil the inspectionrequirements'. The national inspectors have the right to inspect this equipmentand ensure that it meets the description of the equipment approved for thatparticular type of inspection.

Upon arrival at the actual inspection site there is a requirement that theOPCW team shall be briefed by a 'facility representative', who would requireprior training by the National Authority.

The activities of the inspection team are governed by the inspection mandateprovided by their Director General, the Facility Agreement, where applicable,and the respective provisions of the Convention. The escorts must ensurethat the inspection is carried out with the least possible inconvenienceto the facility and that the facility operators are aware of their rightsunder the Convention. In particular, the OPCW team cannot operate any partof a facility but should request that certain operations be performed, ifneeded, to fulfil their mandate. All inspection activities will be carriedout with national inspectors present. Samples required by the OPCW teamwill normally be collected by the staff of the facility operator under supervision,with the escort team retaining a portion for the State Party. Any extensionof the duration of an inspection will require the approval of the NationalAuthority. At the end of the inspection the OPCW team will present its preliminaryfindings to the national inspectors representing the State Party. The generalprovisions for inspections apply unless an alternative procedure is providedunder other parts of the Verification Annex. Parts VII and VIII providesuch procedures for Schedule 2 and 3 chemicals.

Inspector (escort)

The National Authority personnel will escort the inspection teams from theOPCW. The following discussion is initially limited to Schedule 2 and 3inspections of a routine nature at declared facilities and an assessmentof the tasks involved together with the skills required. The in-countryescort of an OPCW team, the 'national inspector' will need to have detailedknowledge of all Schedule 2 and 3 facilities that: (a) providedeclarations to the National Authority, and (b) are liable for on-siteinspections because they produce chemicals above the specified thresholdlevels.

Before any inspections take place the national inspectors will have to befamiliar 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 wellas having the requisite technical competence (or access to it in other governmentdepartments). They will have to be able to carry out negotiations with boththe inspection team and the facility operators. They will act as the StatesParty's interface with the OPCW inspection team and will also have a majorresponsibility to industry involved in the production, processing and consumptionof scheduled chemicals. Later their activities will extend to the producersof 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 the national inspectors during an inspection processcan best be seen by reviewing the activities of the OPCW inspection teamand noting that the inspected State Party has the right to observe all verificationactivities. The national inspectors will have 48-hours notice of a Schedule2 inspection (this includes the 12 hours after arrival at the POE of theinspection team). In that period the National Authority will have to reviewall documentation provided to the OPCW on that facility to review the accuracyof the appropriate declarations and any other information on the facilityheld by the National Authority. The other pre-inspection activities willinvolve: (a) reviewing the notification sent by the Director Generalto the State Party concerning the nature of the inspection and the sizeof the inspection team, (b) notifying the facility that itwill be inspected in the next 48 hours, and (c) preparing the pre-inspectionbriefing with the facility personnel who will be responsible for deliveringit.

After the pre-inspection briefing, the OPCW team begins its inspection usingthe rules of inspection which form part of the Verification Annex to theCWC. These are based on delicate negotiations and must be adhered to. TheTechnical Secretariat will actually work from an Inspection Manual thatis 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 ensurethat: (a) the OPCW team limits its activities to these required toverify compliance, (b) the inspection team carries out the on-siteinspection in the declared location and only visits other locations at theplant site either after on-site negotiations or under managed access rulesunless a Facility Agreement already exists, (c) the industrial operatoris fully aware of its rights and obligations under both the CWC and nationalimplementing legislation, and (d) no confidential business information(CBI) leaves the site unnecessarily and that which does only leaves in asecure manner with an appropriate 'paper trail'.

It is assumed that the inspection process will eventually fit into the timeframes suggested by the CWC, but initial inspections and the negotiationof Facility Agreements will almost certainly require more time on the partof both the facility management and the national inspector(s). In fact,early National Trial Inspections have shown this to be the case. The nationalinspector(s) will have to negotiate extensions to on-site inspections asrequired if there are problems with verification of compliance by the OPCWteam in the time frames allocated. This extension is not a right and needsto be clearly demonstrated by the OPCW team.

There are two final aspects of the inspection: the debriefing where theOPCW team supplies its preliminary report, and a listing of all samplesand written information that it wishes to take off-site. There may wellbe disagreement over the latter issue, but the debriefing meeting will haveto be completed within 24 hours of the termination of the inspection whenthe 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 inspectorsof the National Authority within 10 days, and it has 30 days to add itsannexed comments to those sent to the Director General of the OPCW.

The above illustrates the general outline of an inspection process. Thedifference 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, forSchedule 3 facilities a Facility Agreement will have to be negotiated foreach declared plant site and this will require both legally and technicallyqualified personnel from the National Authority side. It is likely thatnegotiating 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 nationalinspectors; (b) preliminary negotiations between the National Authorityand the OPCW team; and (c) final agreement on the Facility Agreementbetween the National Authority and the OPCW after further discussions betweenthe national inspector(s) and the plant site management.

In the absence of a Facility Agreement, as under Schedule 3, such inspectionswill be carried out on a 'managed access' basis. This requires a step-by-stepnegotiation on the extent of access between the OPCW team and the nationalinspector(s) acting for the State Party as well as the facility operator.In the industrial context, this means ensuring the security of CBI as describedin the Confidentiality Annex.

The inspection activities 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 OPCWteam, (h) escort OPCW team to POE, (i) review and commentson 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) understandingof regulatory processes in the chemical industry as well as the CWC, (c)the ability to explain rights and responsibilities to facility employeesrelative to the CWC and national legislation, and (d) the abilityto negotiate with the OPCW team, especially for initial inspections, managedaccess and Facility Agreements.

National 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) verificationprinciples and the CWC, (b) technical skills required to overseeinspections, (c) administration, and (d) a knowledge of regulatoryprocesses in the chemical industry. The background training for a nationalinspector would be a degree in chemistry (usually industrial, analyticalor organic), engineering (chemical, process or mechanical), industrial accountancy,law or business administration and previous experience either in industryor in a regulatory environment.

Estimate of inspector (escort) requirements

It is unlikely that a National Authority would be able to ensure that itcould 'observe all verification activities carried out by the inspectionteam' with only one inspector present especially since the National Authorityis responsible for all administrative arrangements for the inspection teamat very short notice (e.g., communications, interpretation, transportationand the like). In addition to the fact that it is unlikely to find the mixof skills required to escort an OPCW inspection team in one individual,it is necessary to ascertain the minimum number of national inspectors requiredto 'escort' an inspection team. To answer this appropriately requires anindication of the size, composition and tasks of the OPCW team.

Team size

In terms of an escort group which has to 'observe' all the verificationactivities described, the OPCW team can be considered to fall into threegroups 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. This suggests a need for 3 to 5 nationalinspectors:

Group A 1 inspector to carry out negotiations with the teamleader andmake specific requests to the facility operator;

Group B 3 inspectors to cover engineering, chemistry and accountingexercises; and

Group C 1 inspector to cover the administrative requirementsof theinspection including interviews, translation, and so on.

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

Workload

The number of national inspectors required by any given State Party is afunction of the overall workload and the number of routine inspections generatedby: (a) Schedule 2 facilities, (b) Schedule 3 facilities and,later, (c) discrete organic chemical producers. It is important toestimate the number of days an inspector actually can spend in the fieldescorting OPCW inspection teams. Until there is a specific legal requirementfor producers, processors and consumers to declare their activities relatedto scheduled chemicals, the best estimates only include producers and consumersinvolved in national producer organisations.

If the number of plant sites under Schedule 2 is 'X' and the number underSchedule 3 is 'Y' and if the assumption is that the OPCW will attempt tocover both the schedules plants in the first three years after entry intoforce then the number of inspection days are:

Schedule 2: X x 96 h = X x 4 days

Schedule 3: Y x 24 h = Y days

As far as Schedule 2 is concerned, there is a requirement for all sitesto undergo initial inspection and to prepare for a Facility Agreement tobe signed by the OPCW and the State Party within the next 90 days, and todecide on the frequency and intensity of subsequent inspections. Additionally,the inspections must be unpredictable or random, and no individual plantcan 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 randomexcept as related to geographic distribution. A risk assessment will alsobe implied in the inspection Schedule, and a Facility Agreement may be requestedby the State Party. Again, a plant site will not be inspected more thantwice a year.

For the number of inspections related to Schedule 3 and 'other chemicalproduction facilities' the CWC provides the general formula: 3 + 5 per centof the plant sites declared (under Schedule 3 and 'other' facilities) percalendar year to a maximum of 20 inspections. If this number is estimatedand equal 'Z', the number of inspection days for Schedule 3 would be basedupon the following estimate:

Z x 24 h = Z days

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

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 daysper annum (i.e., there is a factor of ca. 1.6 to 1.8 to bring a nationalinspector complement up to the number required to cover all possible industrialinspections). There are also, in many countries, health and safety regulationswhich 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 actuallybe available for escort duties. Past international practice suggest thatan inspector would be 'on-site' for 40-50 days with a target of 100 daysin the field.

This leads to the assessments of other tasks that would require inspectorskills. Amongst these are: (a) analysis of other States Parties declarationson scheduled chemicals and plant sites, (b) challenge inspections,(c) industrial training and liaison, (d) assisting the State Party'sdelegation to the OPCW, (e) assisting other State Party's NationalAuthorities, and (f) liaison with military agencies re-inspections(single small-scale facilities).

IV. National compliance inspections and Facility Agreements

Facility Agreements will be directly concluded between the States Partiesand the OPCW. The normal situation, thus, will be that Facility Agreementswill be negotiated and concluded between a National Authority on behalfof a State Party and the Technical Secretariat on behalf of the OPCW. However,since Facility Agreements will be of major importance for the conduct ofinspections and thus, will directly affect an inspected facility, the NationalAuthority will have to negotiate with both sides: the management or ownerof a facility and the OPCW. A National Authority will in that context mediateto a large extent between both actors. In relation to the OPCW it has tomake sure that the verification tasks at a given site can be effectivelyconducted. In relation to the facility management, however, it has to makesure that the Facility Agreement is concluded in a way which sufficientlyprotects the interests of the facility, (i.e. refrain from any unnecessaryhampering of its production activities and protection of confidential information).

One of the major tasks for a National Authority will thus be to make theModel Facility Agreements, still to be adopted, operational at the nationallevel. Since the Model Facility Agreements must be general by its nature,they have to be adapted to the specific conditions in any of the StatesParties. A National Authority must therefore adopt a concept which servesboth purposes: to comply with the requirements adopted by the OPCW and tomake them operational at the national level. This includes as well thatthe National Authority should identify areas where a uniform approach canbe taken and to keep specific regulations with a facility to the extentnecessary. Since Facility Agreements will interfere to a rather large extentwith the rights of a facility, States Parties are well advised to adoptspecific regulations, and at a minimum to empower the National Authorityto conclude such agreements[2].

At the national level the first task for a National Authority will be toidentify potential sites for which a Facility Agreement must be concluded,(i.e. Schedule 1 and 2 facilities). It may also have to identify Schedule3 facilities which may wish to conclude a Facility Agreement to protectconfidential information. The identification of such facilities will bedone mainly on the basis of declarations required under the respective nationallegislation. A second step will then be to enter into consultations withthe affected facilities. The National Authority will have to explain tothe owner or the management of a facility its obligations (i.e. to grantaccess to their facility) as well as its rights (i.e. to protect confidentialinformation). This implies that the facility management must be granteda say in the content of a Facility Agreement. The management of an inspectedsite and the national inspector(s) must be prepared to spend a significantamount of time in preparation for negotiating the Facility Agreement, whichis a legal document/agreement between the OPCW and the State Party. However,the real understanding of the plant site will reside with the management.This is a legal as well as technical issue.

Since Facility Agreements will have, to a certain extent, a restrictivefunction regarding the mandate of an inspection (i.e. unimpeded access incase of an international inspection) owners or the management of a Schedule3 facility may be interested in concluding a Facility Agreement as well.The National Authority will thus also have the task to identify these facilitieswhich have reasonable grounds to request such an agreement. Research laboratoriesprocessing Schedule 3 chemicals (e.g., in the pharmaceutical industry) mayhave a great interest to protect their confidential information by meansof a Facility Agreement.

It will therefore be necessary for the National Authority to have sufficientknowledge of a facility to prepare the initial inspections adequately. TheNational Authority has to prepare the management of a facility for the mainactivities that will be carried out by the international inspectors. Onthe other hand a National Authority must be sure that it plans an initialinspection on the basis of correct information. It will thus check duringits consultations with the facility management whether the information submittedis indeed correct. This will be done by means of consultations. However,to rely exclusively on the co-operation of the owner or management of afacility will not always be sufficient, especially in cases where the facilityowner or manager takes a non co-operative position. In most of these casesit will be sufficient to explain that the conclusion of a Facility Agreementand the correctness of submitted information serves mainly the interestsof the facility itself. In addition it may suffice to explain that non-compliancewith reporting obligations may cause substantial sanctions. However, incases where such explanation is not fruitful, it may be useful to empowerthe National Authority with an inspection rights of its own, to test whetheror not the submitted information is indeed correct. Although not specificallymentioned with regard to Facility Agreements, Australia's implementing legislationprovides for the conduct of national compliance legislation carried outby national inspectors (see below).

The co-ordination and consultation process between a National Authorityand the owner or management of a facility will be rather time consuming.Since the negotiation of a Facility Agreement with the OPCW will be basedon the initial declarations submitted by a State Party, National Authoritiesmust seriously consider this factor in staff planning.[3]This task will require additional personnel in those countries with a relativelylarge number of facilities that are subject to Facility Agreements, at leastfor an intermediate period.[4]

With regard to the OPCW, the National Authority must comply with the ModelFacility Agreements to a possible extent and, anyway with the general rulesof the CWC applicable. Thus, it has to adopt formats for its facilitiessubject to Facility Agreements which are compatible with those to be issuedby the OPCW. The submission of inadequate initial declarations would first,constitute a violation of the obligations of a State Party to the CWC and,second, would certainly lead to some kind of tension during an initial inspectionwhich may result in a request for extension of the inspection by the OPCWinspection team. The contents of a Facility Agreement will be based on thefindings of such an inspection and will be subject to negotiations betweenthe OPCW and the States Party, most likely in The Hague. An inspection resultestablishing that the initial declarations for a facility were insufficientor worse, incorrect would have an impact on the content of the FacilityAgreement. For the facility in question this could mean a tighter inspectionmandate for future routine inspections as well as a higher frequency ofinspections, which may also result in additional costs for the facility.For the State Party this would certainly mean a loss of confidence at thepolitical level. Both could be prevented if the National Authority is grantedat least certain rights to control the correctness of declarations submittedby industry.

It is interesting to note that almost all the implementing legislation reviewedonly makes very general references to Facility Agreements, if at all. Thismay owe to a number of reasons. First it must to be remembered that theCWC is completely silent regarding the procedures for preparation of a FacilityAgreement by a State Party, and there is good reason for this. Any suchreference would be in conflict with the principle of sovereignty, sincethis is exclusively a national matter. Second, many countries have adoptedwhat can be considered a translation approach to implement the CWC nationally(i.e., to do mirror writing by including obligations of the CWC more orless directly in the respective national legislation). Thus, if there isa gap in the CWC itself (for the above mentioned reasons) it may be neglectedin the implementation process as well. Many States Parties, on the otherhand, may argue that there is no necessity to include such a provision sinceit must be in the interest of industry to co-operate with the National Authorityto the extent necessary. However, this supposes that there will be no exemptionfrom the rule that industry will indeed co-operate to the fullest extent.In addition, industry will have no great interest in accepting an additionalsupervisory machinery in its country, since in any case it is subject toinspections by national authorities (e.g., under environmental and healthand safety regulations). This is for example the case in Germany. Finally,States Parties themselves may show little interest in such a regulationowing to their the goal to keep their legislation as clear and short aspossible. Whatever the reasons for this defensive approach in many countriesare, each State Party should consider this question seriously and take adecision on this matter with care, whatever the result may be.

National implementing legislation

The following section reviews existing or draft legislation of a numberof countries having ratified or expected to ratify the CWC in the near future.It will mainly focus on two issues identified above. First, it has to beasked if and to what extent the respective National Authorities have powersto verify declarations to make sure that initial inspections conducted bythe OPCW are based on correct data, i.e. to conduct national complianceinspections. The second question is whether or and to what extent the nationalimplementing legislation addresses the problem of Facility Agreements (e.g.whether or not the legislation specifically provides for powers of the NationalAuthority to negotiate and conclude a Facility Agreement or defines therole of a facility owner in the negotiation process). However, it must bestressed that the selection of legislation reviewed was dependent on theavailability of documentation at the time of writing. Thus, the followingsection mainly reviews the (draft) implementing legislation of the followingcountries: Australia, Germany, the Netherlands, Sweden and the United States.

The conduct of national compliance inspections

The right of a National Authority to conduct national compliance inspectionscan be found in the implementing legislation of Australia, Sweden and theNetherlands.

The Australian Chemical Weapons (Prohibition) Act (CWA)[5],enacted on 25 February 1994, provides in Part V, Division I of the CWA for'Compliance inspections by national inspectors'. Such compliance inspectionscan be carried out even in the absence of an international inspection. Accordingto Section 33, the inspection may be conducted for the following purposes:

(a) determining whether the provisions of this Act and the regulations have been or are being complied with at a declared facility; or

(b) determining whether the conditions applicable to a permit in force in respect of a declared facility have been or are being complied with by a permit holder; or

(c) in relation to a declared facility, other than a Schedule 1 facility confirming the absence of any Schedule 1 chemical; or

(d) ensuring the proper functioning at a declared facility of any monitoring equipment installed in the course of an international compliance inspection or under a facility agreement.

In exercising the functions assigned to them under the CWA, nationalinspectors have the power to: 'search a declared facility; inspect or examinea matter or thing; take samples of a matter or thing; examine a document;take extracts from, or make copies of, a document; operate any equipment,including electronic equipment, located at the facility if the nationalinspector believes, on reasonable grounds, to be in accordance with safetyprocedures applicable at the facility'.[6] Any such nationalinspection has to be carried out in conformity with the relevant safetyprocedures applicable at the facility and may only be conducted with theconsent of the owner of a declared facility or under a warrant issued bya magistrate on the basis of an application by a national inspector[7]. In addition, compliance inspections may only be conductedat facilities for which a Facility Agreement is in force, or, in the absenceof a Facility Agreement, 'during a permit year or notification year in relationto that facility or during the year next following that permit year or notificationyear'.[8] In this context it should be pointed out thataccording to Section 71 of the CWA a national inspector may face a maximumpenalty of 2 years imprisonment if he knowingly submits false or misleadingfacts in an application for a warrant. Finally, it should be mentioned thatthe CWA also provides for offence-related searches of a declared facilityif a national inspector 'has reasonable grounds for suspecting that theremay be on any premise particular evidential material'.[9]

In Sweden the Act on Inspections[10] was proposed toParliament. This bill, together with the proposed amendments to the Dual-UseAct[11] and the Act on War Material[12]will define the powers of national and international inspectors regardingaccess to a site subject to international inspections. Under the Act ofInspections the Government will decide which authority that is to attendthe international inspectors. The Government will also take decision regardingthe specific means to be used during the inspection.[13]The right to access for national inspectors is construed parallel to thoseof international inspectors. In addition, the Dual-Use Act provides a legalbasis for national inspections to check whether or not the declarationssubmitted by a facility are correct.[14]The Dual-UseAct states:

Anyone who has made a declaration under paragraph 6 (b) has to submit informationand documents which may be necessary in the verification of the declarations.Following a request by the Government or the authority appointed by theGovernment to receive declarations (e.g., the National Authority),the company or person making the declaration must submit the necessary information.

For this purpose representatives from the Government or the authority (e.g.,the National Authority) must have access to facilities, plants and plantsites in order to verify the declarations. This may involve on-site investigationsand the taking of samples.

If necessary the police may give assistance to the authority (e.g., theNational Authority) in order that it may obtain access to the facilityfor verification purposes.[15]

Thus, there is a legal basis for national inspections to check whether ornot the declarations submitted by a Schedule 2 and 3 facility are correct.

The Dutch draft Act for implementing the CWC[16] providesin Article 10 for inspection rights of the National Authority which areto a large extent similar to those in the Swedish Act on Inspections.

Finally it should be mentioned that neither the German Implementation Act[17] nor the US draft Chemical Weapons Convention ImplementationAct (CWCIA)[18] provide for national compliance inspections.According to Article 7 of the German Implementation Act, the National Authorityhas the right to request clarification, to control business documents andto conduct on-site inspections in the offices and facilities of a company.However, any such right to access to a facility would require the existenceof reasonable doubts that a facility is not in compliance with its obligationsunder the relevant legislation[19]. Thus, the rightto access as provided for in Article 7 has to be seen as an enforcementmeasure in case of a non-compliance, rather than a right to conduct nationalcompliance inspections[20]. In addition it should bementioned that industry in both countries would certainly object to anysuch move and to accept an additional supervisory mechanism parallel tothe international one.

Facility Agreements

The most advanced and comprehensive regulation regarding Facility Agreementscan be found in the US draft implementing legislation, Section 401 (f) ofwhich reads as follows:

(1) Inspections of plants, plant sites, or other facilities or locations for which the United States 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 themost comprehensive and progressive one in comparison to other legislationreviewed here. Section 401 (f) of the CWCIA defines the role of facilityowners in the negotiations on Facility Agreements rather extensively. Paragraph3 gives owners the right to participate in the procedure. It is not a questionof whether or not such a right exists but rather the extent of this rightas limited by practical and legal considerations. Paragraph 2 is even moreinteresting since it mentions a direct link between the owner of a facilityand the Technical Secretariat for cases where a Facility Agreement for aSchedule 2 facility is found to be unnecessary. It goes without saying thatthis process would, of course, include the National Authority as well. However,this provision is mainly intended to prevent that the National Authoritymay over-rule the facility management, if the management wants to have aFacility Agreement.

The most important point in the current draft, however, is that it mentionsthe possibility of a request by an owner of a Schedule 3 facility or a facilityproducing other chemicals pursuant to Part IX of the VA to conclude a FacilityAgreement. The wording 'should conclude' implies that the National Authorityhas no obligation to conclude such agreement, which remains in its exclusivepowers. However, since one of the main tasks of the National Authority willbe to protect the reasonable interests of its industry this provision isnot likely to be ignored if it enters into force in its current form. Thisreflects the general approach of the US draft implementing legislation togive the protection of private property top priority.

All other legislations reviewed, this far, take less advanced approaches.In Germany, Article 13 of the Implementation Act empowers the Export ControlOffice to negotiate Facility Agreements with the OPCW and to conclude sucharrangements with the OPCW in co-ordination with the Ministries of ForeignAffairs and Economics. In cases where there is an obligation to concludea Facility Agreement, the National Authority is requested, at least, toconsult with the management of an affected facility before the negotiationswith the OPCW start as well as before a Facility Agreement is finally concluded.In all other cases (e.g., Schedule 3 facilities and other chemical facilities)prior consent of the facility management is required. The most interestingaspect of this regulation is that it establishes certain important rightsfor the owner of a facility, most importantly a right to participate inthe procedure and to be kept informed about the process.

Section 76 of the Australian Act specifically deals with Facility Agreementsand assigns to the Minister of Foreign Affairs powers to negotiate and concludeFacility Agreements with the OPCW and gives him wide discretion regardingthe contents of a Facility Agreement. However, Section 76 makes no indicationof the role facility owners are to play in the procedure. The fact thatfacility owners are not granted specific procedural rights under this act,however, does not necessarily mean that they have no right at all. The extentof their participation will depend both on practical and legal considerations.

Neither the Dutch nor the Swedish implementing legislation, this far, includesany regulation regarding this problem.

V. Conclusions

Each State Party will have to decide on its own which concept it adoptsregarding the set up of its National Authority to be able to fulfil itsobligations under the CWC. The nature of a National Authority will be mainlya function of the size and nature of a State Parties chemical industry,besides other factors. This will further determine the number of staff tobe employed based on the assumed workload for the National Authority andto a certain extent also the skills required for national inspectors.

With regard to national compliance inspections and Facility Agreements,in conclusion, it can be said that states have adopted different approacheson this matter this far. Australia, Sweden and the Netherlands have takena far-reaching approach as regards inspection rights for national inspectors.The same applies to the draft US legislation with regard to Facility Agreementsand the definition of rights of facility owners in the negotiation processes.Both approaches are currently the most advanced.

This contribution is not intended to arrive at any recommendations. AnyState Party involved in the implementation process, however, should considerthe problems addressed above seriously.

[1]PrepCom report PC-III/B/WP.3, May 1993, a report on 'Inspection team composition'.

[2] This approach has been taken for example by Germany(see below). In this context it must be streessed that such empowering regulationwill be adopted in accordance with the specific constitutional or legalrequirements in a country. It may well be, that such explicit regulationwill not be necessary. However, a large a number of current and future StatesParties may have do so by means of implementing legislation, may it be byan act or subsequent decree legislation or regulations.

[3] For a more comprehensive discussion of this problemsee above , and R. Sutherland, T. Kurzidem and T. Stock, The Role andFunction of a National Inspector in the National Authority under the CWC,paper 5 in the series of the SIPRI-Saskatchewan-Frankfurt Group on NationalImplementation of the CWC, presented at the Pretoria Regional Seminar, September1994; also published in PTS Series on Occasional Papers, No. 7 at pp. 186-194.

[4] Ibidem.

[5] Chemical Weapons (Prohibition) Act 1993 (207/93).

[6] Section 34 (1) (a) - (g).

[7] This procedure is governed by Section 50 of the CWAwhich inter alia requires a statement of the applicant regarding the purposeof an inspection for which a warrant is issued.

[8] Section 36.

[9] Section 57. Section 58 specifies the procedure forapplying an offence-related warrant, providing inter alia that awarrant may issue such a warrant if 'there are reasonable grounds for suspectingthat there is, or may be within the next 72 hours, any evidential materialas the premises' (Section 58 (2)).

[10] Svensk författningssamling (Official Gazette),SFS 1994: 118, introduced on 7 April 1994.

[11] SFS 1994: 121, introduced on 7 April 1994.

[12] SFS 1994: 122, introduced on 7 April 1994.

[13] Act on Inspections, paragraph 2.

[14] Dual- Use Act, pragraph 6 (c) 2 subparagraph.

[15] Dual-Use Act, paragraph 6 (c); an unofficial translationmade by the author.

[16] Uitvoeringswet verdrag chemische wapens, TweedeKamer (2nd Chamber), vergaderjaar 1994-1995, 23911, nrs. 1-2.

[17] Ausführungsgesetz zum Chemiewaffenabkommen,Bundesgesetzblatt (Federal Gazette) I 1994, p. 1954.

[18] Bill H.R. 4849 'To implement the obligations ofthe United States under the Convention on the Prohibition of the Development,Production, Stockpiling and Use of Chemical Weapons and on Their Destruction,known as the Chemical Weapons Convention and opened for signature and signedby the United States on 13 January 1993.

[19] See the explanatory note to the draft of the ImplementationAct when introduced into the German Parliament, Deutscher Bundestag, Drucksache12/7207, p. 14.

[20] This view is explicitely confirmed by the relevantpassage of the explanatory note (see note 19).

(March 1995)

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