SIPRI Update, November 2008
Perspectives for entry into force of the CWC: Benefits of Early Ratification: Paper 6
THOMAS KURZIDEM, THOMAS STOCK AND RONALD SUTHERLAND
1. Introduction
It is not the aim of this contribution to give any prediction about thedate of entry into force of the CWC or to suggest any time table that mightbe derived from the current state of preparations for ratification of futureStates Parties. The months after the Paris Conference of January 1993 haveproven that any such attempt must be highly speculative and the envisageddate for earliest possible entry into force - January 1995 - is no longerfeasible. Instead, this contribution will discuss the benefits of earlyratification of the CWC. This will be mainly done from two perspectives:a) benefits at the international level, e.g. participation in the organsof the Organization, and b) benefits for the national implementation processesof future States Parties. Since this Seminar is on national implementation,however, emphasis will be given to the latter aspect.
National implementation processes will differ between States Parties thathave already ratified or will ratify soon and late comers, i.e. those futureStates Parties which will ratify short before or even after entry into forceof the CWC. It is submitted that late ratification will have a considerableimpact on the national implementation processes and will raise specificproblems, the most important of them addressed in this paper. Those countriesthat will ratify after entry into force will not only be excluded from someimportant participartory rights in the Organization, but will also haveto face specific problems to fulfill their obligations under the CWC, e.g.to submit their national declarations in time, due to the short time linesthe CWC envisages. The analysis will be based on a review of the tasks andissues to be taken into account in the implementation processes. On thisbasis, experience of those States that have already ratified or that areat an advanced stage of their preparartions will be reviewed and evaluated.Finally, it is the aim of this contribution to draw some lessons from thesefirst experiences and to suggest options to support the implementation processesof late comers to the Convention.
2. Benefits of early ratification at the international level
With regard to the international level one may distinguish between twodifferent kinds of benefits one may expect from early ratification: a) participationin the organs of the Organization, and b) access to information, technologyand assistance in conformity with the provisions of the Convention.
2.1. Participation in the organs of the Organization
According to Article VIII the States Parties to the Convention shall establishthe OPCW, to which all States Parties will become a member of, and whichwill consist of three organs: the Conference of States Parties (CSP), theExecutive Council (EC) and the Technical Secretariat (TS).With regard tothe participation in the Organization in general and its respective organsin particular, there is one general rule which is of major importance whendealing with the benefits of early ratification: membership is restrictedto States Parties of the CWC exclusively. With regard to the work of theOrganization in the first year after entry into force, it is submitted thata large number of important decisions have to be taken by the organs ofthe Convention at the earliest possible stage, i.e. the first session ofthe CSP. There can be no doubt that a number of these decisions will beof major importance for the future work of the Organization and the futureStates Parties as well. It must be, thus, in the interest of any of thefuture States Parties of the CWC to participate in the organs of the OPCWas early as possible.
Participation in the Conference of States Parties
The CSP will be the principal organ of the Convention. Its first sessionshall be convened by the depositary within 30 days after entry into forceof the Convention, to facilitate an early and effective start. To assurethat the Organization can start with its work immediately, it will be importantthat the CSP will decide on some fundamental issues. In general, sessionsof the CSP will be held annually, and the first opportunity for a late comerto the Convention to participate in the decision making would be then thesecond session, provided that no special session will take place in between.
A first important decision will be the adoption of the own rules of procedures,which will, at least in principle, be applicable for all future sessionsof the CSP unless they will be revised by the CSP itself. The CWC includesonly some regulations on the voting procedure in the CSP, but says littleabout further procedures. It will be, thus, up to the CSP, based on thepreparations by the PrepCom, to adopt the rules of procedure at its firstsession. It is submitted that the rules of procedure will have primary importancefor the future work of the CSP. Experience from other international organizationssuggests that the rules of procedure will not only have a procedural functionbut will have an impact on substantial issues too.
One of the most important powers of the Organization is formulated in ArticleVIII para. 20 which reads:
The Conference ... shall oversee the activities of the Executive Counciland the Technical Secretariat and may issue guidelines in accordance withthis Convention to either of them in the exercise of their functions.
To facilitate an effective start of work for both organs it will be necessaryto adopt a number of guidelines of a fundamental nature, e.g. on the contentsand prerequisites of agreements between the Organization and States Parties.Although the CSP cannot deprive neither the TS nor the EC from its powersassigned to them by the Convention, such as the negotiations of agreementsby the TS or their adoption by the EC, both organs will have to comply withany guidelines or regulations issued by the CSP in conformity with the regulationsof the Convention. In this context it is important to note that the CSPin its first session will have to decide on a number of important guidelinescurrently elaborated by the PrepCom, including guidelines for inspectionsand the format of declarations.
Further to that, Article VIII para. 21 lists a number of tasks of the CSPwhich are important and upon some of them decisions will be required inthe first session. Again, many of them will have an important impact forthe future work and structure of the OPCW. Among others, the most importantare:
It is obvious that any of the future States Parties must have an interestto participate in such fundamental decisions, since many of these decisionswill have a direct impact on themselves, no matter at what stage a Statewill enter into the Convention.
Participation in the Executive Council
The Executive Council will be the executive organ of the Organization and,thus, has a central function in the supervision and implementation of theConvention. It will be composed of 41 members which will be elected by theCSP for two years. The election and composition of the EC shall be basedon two fundamental principles: rotation of membership and equitable geographicdistribution. However, the first term of the EC will be limited to one yearand will be composed of 20 members only.
Again, it is submitted, that the first year of work of the EC will be crucialand will determine its work for the future terms too. It will depend toa large extent on the work of the EC whether or not the Convention willbe effectively implemented from its very beginning. Among other tasks themost important will be:
Members of the Executive Council will have impeded access to informationrelating to the implementation of the CWC. Thus, States Parties must havean interest to participate themselves in the EC at an early stage, or, atleast, to be represented by other members of the regional group a StateParty belongs to. To facilitate confidence in the Convention it will be,thus, necessary that the regional groups are sufficiently represented asprovided for in the rules regarding the composition of the EC. However,this requires that a sufficient number of countries of the different regionalgroups have ratified on the date of entry into force.
The Technical Secretariat
The TS will be the organ of the Convention carrying out the verificationmeasures and will be composed of a Director-General, inspectors and scientificand other personnel as may be required. As a rule, only citizens of StatesParties will be allowed to work in the regular staff of the TS. To mentionthis point in relation to benefits of early ratification appears to be somewhatproblematic. Thus, it has to be stressed that any individual entering intothe services of the TS will work in his or her personal capacity only andnot as a representative of a government of any States Party. He or she shall,therefore, refrain from seeking advise from any government or any otherexternal source. However, for the proper functioning of and trust in theConvention it will be necessary that the regular staff of the TS will representa sufficient variety of nationalities based on the principle of equitablegeographic distribution. However, for obvious reasons this rule can onlybe applied in so far as specialists are indeed available for the tasks inthe TS.
2.2. Access to the benefits of Articles X and XI
Another important aspect will be to have access to the benefits providedfor by Articles X and XI. The most importnt are:
Another important aspect is provided for by Article VIII para. 38 (e) whichreads:
The Technical Secretariat shall ...
(e) provide technical assistance and technical evaluation to States Partiesin the implementation of the provisions of this Convention, including evaluationof scheduled and unscheduled chemicals.
This provision may be of particular interst, however, also for the latecomers since it suggests a rather wide approach. Although the term 'technicalassistance' seems to imply to be restricted to analysis of chemicals, laboratoryhelp etc., it may be read wider and may also include help in the set upof a National Authority by providing 'technical' assistance, e.g. computersoftware. It may also be used for follow-up programmes like the regionalseminars currently organized by the OPCW.
Besides that the CSP, of course, has the powers to establish or authorizespecific programmes for assistance if needed.
2.3. Equitable geographic distribution
The principle of equitable geographic distribution is essential for theconfidence in an international treaty, especially in an intrusive one likethe CWC creating an international organization with far reaching powers.However, this principle can only be applieed if an equitable geographicdistribution exists already at the date of entry into force of the CWC.Taking into account the rules for the composition of the EC it will be ofutmost importance that this geographic distribution will indeed alreadyexist at this date. Thus, early ratification and participation in the organsof the Convention is not only a national interest but also of 'supranational'interest, i.e. the representation of a region or a group of countries, evenif no common policy towards the Convention in a regional group exists.
3. Tasks and issues for national implemention of the CWC
3.1. General rules with regard to national implementation
The basic obligation regarding national implementation is contained in ArticleVII of the CWC:
'Each State Party shall, in accordance with the constitutional process,adopt the necessary measures to implement its obligations under this Convention.In particular, it shall prohibit natural and legal persons anywhere on itsterritory or in any other place under its jurisdiction and control as recognizedby international law from undertaking any activity prohibited to a StateParty under this Convention, including enacting penal legislation with respectto such activity.'
The fundamental question with regard to this provision is to determine whatthe 'necessary measures' are that have to be taken by a State Party. Thekind of measures that are necessary may vary, at least to a certain extent,from State Party to State Party due to different legal systems. However,some examples for necessary implementing legislation will be given below.
3.2. Tasks for national implementation
A State Party accepts the basic provisions of the Convention in ArticleI and 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:
3.3 Some legal considerations regarding national implementation
National implementation regimes will differ from State Party to State Partyaccording to the impact of the CWC on its activities and its chemical industry.The nature of its National Authority will be a function of:
The second determining factor of what are the 'necessary measures' to betaken will be the constitutional and legal environment of a State Partywhich has to implement the Convention.
General rules relating to the internal application of international treaties
The most fundamental issue one has to take into account are the generalrules relating to the internal application of international treaties. Inmany countries an international treaty concluded by the State becomes partof the internal law, at least to a certain extent and under certain conditionsonly, e.g. in the United States, Germany and the Netherlands. However, theCommonwealth countries for example do not follow this kind of automaticincorporation of a treaty into their national law. Thus, in these countriesspecial implementing legislation will be required.
But even in those countries which automatically incorporate treaties intothe internal law additional implementing legislation will be required ifa treaty contains so-called non-self-executing norms. Whether or not a treatynorm is self-executing is not always easy to decide. However, with regardto the CWC this is quite obviously the case, e.g. those regulations concerningprivate activities. Thus, additional implementing legislation will be required.The same holds true with regard to what can be called incomplete norms.An example for this are the regulations concerning the reporting dutiesof States Parties. The CWC presupposes that the States Parties are in thepossesion of the kind of information as required. However, the Conventionis completely silent about the means to collect this information. Thus,again additional implementing legislation will be necessary to fulfill theobligations vis-à-vis the OPCW.
Another important aspect is the relation between treaties and the constitutionof a State Party. In many States treaties have the same rank as statutelaw at the internal level, while in other States treaties prevail over statutelaw. In the Netherlands treaties are placed above the convention. In Stateswhere a treaty is not incorporated into national law and, thus, implementinglegislation is required, treaties have the rank of 'normal legislation'.Whatever is the situation in a State Party, these general aspects will toa large extent determine what 'necessary measures' in fact means. Besidesthis it has to be reminded that specific provisions of the CWC, e.g. thoseon verification, may conflict with the constitutionally protected sphereof private individuals. To solve this problem, if it exists, again implementinglegislation will be needed and future States Parties will have to examinethis problem carefully.
Treaty obligations requiring implementing legislation
States Parties will have to comply with vast reporting duties. While itwill be no problem to comply with the reporting obligations regarding chemicalweapons, since they will be in the possession of the State, the gatheringof information regarding activities in scheduled chemicals will be far moreproblematic. Implementing legislation will be, thus, necessary to make surethat a State Party is able to obtain this kind of information from privatefacilities as well as to protect the legitimate private interests regardingthe use of such information, which will be to some extent of confidentialnature.
The same holds true with regard to routine monitoring mechanisms as providedfor by the CWC. At least, as far as private individuals or enterprises areconcerned, regulations with regard to access to scheduled facilities aswell as to the protection of private interests will be needed. Such regulationwill have to address also the powers of a National Authority to negotiateFacility Agreements with the OPCW.
Challenge inspections may also affect private enterprises and, thus, thesame problems regarding access and protection of private interests occuras it is the case with routine monitoring. However, distinct from the routineprocedures there will be no Facility Agreement for such sites, and additionalregulations will be needed to provide access for the OPCW inspectors, sincethe relevant provisions of the CWC (Art. IX para. 11(b)) are not self-executing.
Another important area where implementing legislation will be necessaryand which is specifically addressed in Article VII relates to the preventionof violations by private individuals and enterprises. According to the relevantprovisions of the CWC a number of activities, e.g. research, productionand trade in chemicals, have to be controlled or prohibited by law. Furthermore,it may be necessary to implement administrative or criminal sanctions todeter violations of the Convention.
Existing regulations as a model?
The consideration of what are the 'necessary measures' to be taken at thenational level will also depend whether or not there are regulartory modelsfor similar problems already existing which could be copied. This holdstrue also for administrative enforcement mechanisms, e.g. whether or nota organizational structure exists that might be used or copied. A numberof the future States Parties have acquired such experience with regard tothe control of chemicals, international trade as well as national statisticsand seem to make use of them in their implementation processes, at leastwhere possible.
3.3 The National Authority
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:
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.
Tasks with regard to the collection of data
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 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:
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.
4. Strategies for national implementation
Generally one can think of three different types of strategies to implementthe CWC at the national level:
So far, we can find examples for the first two strategies in those Statesthat have already ratified: Sweden being an example for the first category,Germany and Australia for the second. None of the above mentioned strategiespose any problem at the current state, the entry into force of the CWC stillsome time ahead. However, with regard to simple practical considerations,future States Parties that will ratify short before or after entry intoforce will have to follow either strategy 2 or 3. Only those future StatesParties which can be sure that they have to submit only negative declarations,might be in a position to follow strategy 1. However, with regard to theorganizational problems, at least to name a person responsible to serveas the National Authority, strategy 1 will put a future States Party undertremendous pressure. Thus, it is submitted that the closer we come to thedate of entry into force of the CWC the more predominant strategies 2 and3 will become.
5. Practical problems with implementing the CWC
This section shall give a short description of the strategies followedby by a number of States that have either already ratified the CWC or thatare preparing their ratification. However, this will be done in so far asnecessary information was avaiable to the authors and without discussingspecific legal problems of someof the countries in detail.
5.1. The legislative process
Although, so far, only 14 States have ratified a first very general lessoncan be drawn from national implementation processes already at this pointin time: implementing the CWC turned out to become even more complicatedthan many States have expected. Even some of those countries that were preparedfairly well and played an active role in the negotiations have made or arecurrently making this experience. This is certainly due to the complex andcomplicated structure of the CWC. However, the main problems with implementingthe CWC are internal ones. First of all there are a number of States thatseem to have some problems with the drafting process itself. During thenegotiations in Geneva chemical weapons were mostly an issue within theresponsibilities of the Ministries of Foreign Affairs alone or, at least,with the clear supremacy of them. When it comes now to implementation manyother ministries, governmental agencies as well as industry representativeshave to be involved in the process. An often used model was and is to establisha inter-ministerial working group with the task to draft the necessary implementinglegislation, including all ministries that might be affected by the implementinglegislation. The experience with such working groups showed that differentministries do not necessarily share the same opinions with regard to specificregulations to be implemented into national law. Thus, there has to be aconstant process of mediating between different interests involved in theprocess. Needless to say, that this may turn out to be very time consuming.
The next step then will be the adoption of the draft legislation, whichwill be in most cases a task for the national parliaments. The regular modelwill be a two step procedure to ratify and implement the treaty: approvalof a ratification act by the national parliaments and the enactment of additionalimplementing legislation to make the provisions of the CWC operational atthe national level. It is submitted, that most of the future States Partieswill have to follow a similar procedure. Experience from some of the StatesParties showed that parliamentary discussions may bcome another delayingfactor. Besides this, parliamentary schedules do not necessarily correspondwith the political goal of early ratification of many governments.
5.2 The National Authority
The decision how to organize the National Authority will to a large extentbe determined by the existence or non-existence of structures and regulartorymodels that can be used or copied. This general thesis has been confirmedby the practice so far. In those countries with a large chemical industrythere seems to be a trend towards establishing the Head of the NationalAuthority in the Ministry of Foreign Affairs and to delegate the enforcementof the Convention to existing governmental agencies that have already acquiredsome experience in related fields. Germany is good a good example for this.While the Head of the National Authority will be established within theMinistry of Foreign Affairs, within the Department that had been responsiblefor the negotiations of the CWC, the enforcement of the CWC at the nationallevel was delegated to two existing governmental agencies. The militarycomponent was assigned to the Verification Centre of the Bundeswehr in Geilenkirchenwhich has acquired verification experience inter alia with the CFEagreement. The civilian component was assigned to the Export Control Office,a subsidiary agency of the Ministry of Economics, which has acquired experiencewith regard to the control of prohibited exports of CW-related material.While Sweden has followed a similar model, Australia developed its own approachto a National Authority. It established the Chemical Weapons ConventionOffice as a special unit within the Australian Safeguards Office. The Directorshipof the CWC Office will be assumed by the Director of Safeguards under theNuclear Non-Proliferation (Safeguards) Act of 1987.
From current experience some problems with regard to the establishment ofa National Authority should be shortly addressed. One of the major problemsof a National Authority will be to collect the data as required by the Convention.First of all the potential addressees for reporting have to be identified.Especially States Parties with a large chemical industry will have a problemto contact all enterprises or individuals that might be concerned. Thiswill be further complicated by the fact that the chemical industry willnot be the only potential addressee in this respect. This will be for manycountries a time consuming procedure and will require much time for preparation.If the CWC would enter into on 1 January 1994 as it was originally envisaged,a country like Germany, with a large chemical indiustry and having alreadyratified the CWC, would not be able to comply with its reporting dutiesat that date. Although Germany has taken the necessary legislative and orgnizationalsteps it will take the National Authority some months to acquire and processthe necessary information. This is certainly not a problem at this stateof ratification and Germany will be in a position to comply with ist obligationsupon entry into force. However a late comer will not have the time for additionalpreparations like those States that have already ratified or will ratifysoon.
6. Specific problems for the late comers
The basic problem for a late comer with regard to national implementationwill be the short time it will have to put its national system into fulloperation. Different from those States that have already ratified, latecomers will have no time to further develop or complement their system afterratification. Once a State has ratified after entry into force, it has tobe in full compliance with the Convention, i.e. the system must effectivelywork. This suggests, that late comers, at least those with a relativelylarge chemical industry, have to implement their respective national regulationsand establish their National Authority prior to their ratification. Especiallywith regard to the reporting duties such States will have to face considerableproblems to comply with the relevant provisions of the CWC. For many ofthese States it will be, thus, important to profit from experiences madeby other States Parties, which have their system already running. It willbe also a task for the OPCW to assist such States in finding effective solutionsfor their problems. It is submitted that the primary problem then will notbe to prepare the necessary legislation, but to implement it effectivelyat the national level.
Major tasks that have to be addressed in this context will be:
7. Some suggestions to support the national implementation processesof the late comers
Whether or not the CWC will be effectively implemented, will depend toa large extent on the national component. Thus, all States Parties as wellas the OPCW must have an interest that future States Parties will be ina position to fulfill their obligations under the CWC as accurate as possiblefrom the very beginning. With regard to the late comers to the CWC it issubmitted that this will often require external assistance, which may beorganized as follows:
Assistance by the OPCW
The OPCW has already started an initiative to support the national implementationprocesses with its series of regonal seminars on national implementation.At this point in time these seminars seem to have the major aim to supportthe ratification processes with a view on the earliest possible entry intoforce. However, with regard to the late comers the problems with ratificationand implementation will be different from those we face at the current stateof ratifications. Thus, it would be certainly helpful if the OPCW developeda specific programme for the late comers. Such a programme should includeat least three levels of assistance: a) asssitance with regard to the draftingof legislation, b) assistance with regard to establishing a National Authority,and c) technical assistance, e.g. by providing computer software for thehandling information and declarations.
The easiest way to establish such a programme would be to transform existingregional programmes as described above. Another possibility could be toestablish some sort of a voluntary fund supporting such activities. Sucha fund could be established by the CSP along the lines of Article X para.7.
Bi- or multilteral experience
A second option to support the implementation processes of late comers couldbe based on bi- or multilateral assistance by States Parties either directlyor through the Organization. This option presupposes the willingness ofStates Parties to share their experiences and, as well, the acceptance tosuch kind of assistance by a State concerned with ratifying the CWC. Inaddition the transfer of knowledge on a bilateral basis presupposes thatthe model of a State Party is transferable to the problem of a State requestingassistance. Another problem relates to the financing of such cooperation.Only few States Parties will be able or willing to cover the financial implicationsfor such kind of cooperation. It seems also questionable whether requestingStates will be able themselves to pay for such a programme. Thus, it mightbe useful to link such kind of asistance with a possible voluntary fundas described above.
Assistance from NGO's
NGO's may play also a role in this respect. A number of NGO's or individualshave already supported the efforts of the OPCW in its activities with regardto national implementation. NGO's have provided background material andparticipated in the regional seminars organized by the OPCW. By that theyhave accumulated information and gained experience in this field. Some ofthem were also involved in supporting their national governments in implementingthe CWC. Thus, some of the NGO's and individuals have gained an amount ofknowledge which should be used in the further course of implementing theCWC. However, two problems have to be addressed in this context. Firstly,this kind of assistance has its clear limits with regard to the funds availablefor such projects, and, secondly, this would require a clear definitionof the role NGO's may play in this context.
8. Conclusions
The problems with regard to national implementation of the CWC will substantiallychange the closer we come to entry into force of the Convention. It willbe, therefore, necessary to support countries that will enter into the CWCshort before or even after entry into force. For this purpose specific programmesof assistance should be developed to help such countries to solve theirlegal, organizational and technical problems if requested. It is submiitedthat such kind of assistance, in the long run, will be cheaper than riskingthat late comers may enter into the Convention without being sufficientlyprepared and not being able to establish full compliance with the Convention.