SIPRI Update, November 2008
Facility Agreements under the CWC: Do we need Implementing Legislation?: Paper 8
THOMAS KURZIDEM, PATRICIA RADLER, THOMAS STOCK AND RONALD SUTHERLAND
I. Introduction
The second anniversary of the Chemical Weapons Convention (CWC) signingconference in Paris passed in January 1995. There have been 27 ratificationsby March 1995, but 38 are still needed before the Convention can enter intoforce. The CWC could not enter into force at its earliest possible date,February 1995, and there are many experts who are doubtful that the Conventionwill be in force by the end of 1995. There are several reasons for thisdelay in the implementation process.
Countries have realized that setting up the legal and organizational frameworkfor ratification and national implementation is more time consuming andexpensive than expected. The chemical industry has become aware that thereare certain issues of concern with respect to future declaration requirements,and a need exists to better inform and instruct industry about these requirements.The process of final elaboration and agreement on procedures relating todeclaration requirements and verification activities in the PrepCom, inparticular in the expert groups, has revealed problems of a technical nature,most of which are, however, politically based.
This paper attempts to evaluate and to analyse the most important aspectsrelating to Facility Agreements under the CWC in the context of future inspectionactivities which will be conducted by the Organisation for the Prohibitionof Chemical Weapons (OPCW). Under the CWC routine on-site inspections andsystematic on-site inspections will be conducted for industrial facilities,chemical weapons production facilities (CWPF), chemical weapons destructionfacilities (CWDF) and chemical weapons storage facilities (CWSF). For theseactivities the Convention foresees the conclusion of Facility Agreementsbetween the State Party and the OPCW which are related to a specific facilitysubject to on-site verification activities. In addition, this paper evaluatesthe currently available national implementation legislation from countrieswhich have ratified or soon will ratify the Convention to identify legal,but also organizational and administrative issues which are related to thequestion of concluding a Facility Agreements between the State Party andthe OPCW. The major goal of this paper, however, will be to identify andanalyse the processes taking place between a National Authority and theowner or management of a facility subject to inspections under the CWC andto evaluate existing and forthcoming legislation to determine whether andto what extent these provide a sufficient legal basis.
II. Facility Agreements and the CWC
Definitions
Under Part I of the Verification Annex (VA), paragraph 7, the term FacilityAgreement is defined as 'an agreement or arrangement between a State Partyand the Organization relating to a specific facility subject to an on-siteverification pursuant to Articles IV, V and VI'. The purpose of the FacilityAgreements will be to govern the activities of both the inspected site andthe inspection team. The agreement between the State Party and the TechnicalSecretariat (TS)/OPCW is subject to approval by the Executive Council.
In this respect it is important to notice that the CWC also mentiones anothercategory of agreements: Model Agreements. They are further defined in theVerification Annex (VA) Part I as a 'document specifying the general formand content for an agreement concluded between a State Party and the Organizationfor fulfilling the verification provisions...'. These agreements will begeneral and will serve as the basis for more specific agreements, such asthe Facility Agreement between the State Party and the OPCW on a specificfacility.
In most cases three parties will be involved in the negotiations of a FacilityAgreement:
(a) the management of the particular facility (civilian or military),
(b) the National Authority (NA) of the State Party; and
(c) the TS of the OPCW.
The agreements agreed upon will have to balance the needs of confidentiality(of secret industrial matters) against the need to demonstrate compliancewith the obligations under the CWC.
Inspections and Facility Agreements
The CWC foresees five types of on-site inspections activities:
(a) Systematic verification of CW (incl. old CW and abandoned CW), CWPF, CWSF and CWDF (through on-site inspection and monitoring with on-site instruments);
(b) Systematic verification of single small-scale facilities (Schedule 1 chemicals production) through on-site inspection and monitoring with on-site instruments;
(c) Routine inspections of certain chemical facilities through on-site verification and data monitoring (Schedule 2, 3 and DOC and PSF facilities);
(d) Challenge inspections; and
(e) Investigations in case of alleged use of CW.
Based upon the above classification the question is now: For which facilitiesunder the future inspection regime will Facility Agreements be required,keeping in mind that such an agreement should facilitate the inspectionactivities (i.e., for both sides, the inspection team and the inspectedfacility)?
The basic obligations for inspections of this type are to be found in ArticleIV, paragraphs 9 and 10:
(9) For the purpose of on-site verification, each State Party shall grant to the inspectors access to facilities as required in the Verification Annex.
(10) In conducting verification activities, the Technical Secretariat shall avoid undue intrusion into the State Party's chemical activities for purposes not prohibited under this Convention and, in particular, abide by the provisions set forth in the Annex on the Protection of Confidential Information (hereinafter referred to as "Confidentiality Annex").
It is obvious that for on-site inspection activities, where inspectoraccess to facilities will be required, the Facility Agreements will be ofprimary importance. Both paragraphs outline additional purposes for suchFacility Agreements: (a) to grant the required access, and (b) to avoidundue intrusion into activities which are not prohibited under the CWC.
For systematic verification through on-site inspections and monitoring withon-site instruments Facility Agreements are required for: CW (incl. oldCW and abandoned CW), CWPF, CWSF and CWDF, and single small-scale facilities(Schedule 1 chemicals production). Additionally, Facility Agreements arerequired for Schedule 2 facilities, which will be controlled by means ofdata monitoring and on-site verification.
There is, however, one exemption which is related to Schedule 3 facilitiesand 'other chemical production facilities'. They will be subject to datamonitoring and on-site verification (in case of 'other chemical productionfacilities' only potentially). The selection for inspections here will bemade on an annual random basis. Geographic equity and the nature of thefacilities may affect the distribution. For these plant sites, FacilityAgreements are not required to be developed.[2]
The differences of the inspections grade from close Facility Agreement controlledinvestigation of Schedules 1 and 2 sites to the more relaxed inspectionof the 'other chemical production facilities' This reflects the differentdegree of threat these facilities will pose to the objectives of the CWC.
General provisions for Facility Agreements
Part III of the VA contains general provisions for verification measurespursuant to Articles IV (CW), V (CWPF) and VI paragraph 3 (Schedule 1 chemicals).According to this section Facility Agreements are to be agreed upon, elaboratedand approved within specified time-frames, which will vary according tothe relevant articles. The concept applied is that of having an initialinspection for the facilities under systematic on-site verification andmonitoring by instruments (CWDF, CWPF, CWSF, single small-scale facility)promptly after declaration. The purpose of this initial inspection is to:(a) verify the declarations; (b) obtain any additional information requiredfor planning future verification activities at a specific facility, includingon-site inspections and continuos monitoring with on-site instruments; (c)work on, or, at least to prepare the Facility Agreement; and (d) assess,in regard to the frequency and intensity of subsequent inspections, therisk to the object and purpose of the CWC posed by the relevant chemicals,the characteristics of the facility and the nature of the activities carriedout there.
Each Facility Agreement (for CWPF, CWDF, CWSF and Schedule 1 facilities)is to be completed not later than 180 days after the Convention enters intoforce for the State Party or after the facility has been declared for thefirst time. An exception is made relating to CWDF, to which different timelines apply in regard to the starting of destruction operations. The requiredcompletion of the Facility Agreement within 180 days after the CWC entersinto force implies directly that the initial inspection has to be concludedprior to that time.
For Schedule 2 chemicals under Article VI paragraph 4, the initial inspectionis to take place as soon as possible but preferable not later than one yearafter production, processing or consumption is declared for the first time.During the initial inspection a draft Facility Agreement shall be prepared.The Facility Agreement is to be concluded not later than 90 days after thecompletion of the initial inspection. A Facility Agreement for Schedule2 facilities is necessary, unless the inspected State Party and the TechnicalSecretariat agree that it is not needed.
For Schedule 3 and other chemicals (PSF, DOC) the verification is carriedout through on-site inspections (routine inspections). There is no specifictime frame for when the first inspection has to take place. A Facility Agreementwill be concluded only if the inspected State Party requests it.
In summary, for Articles IV, V and VI paragraph 3 facilities (except forCWDF), Facility Agreements are to be concluded within 180 days after theCWC enters into force for a State Party or after the facility has been declaredfor the first time.[3] For Schedule 2 facilities FacilityAgreements are to be concluded not later than three years and 90 days afterthe entry into force of the CWC.
The following section focuses mainly on Schedule 1 and Schedule 2 verificationactivities based upon Facility Agreements. This situation will be the mostcommon one applying to States Parties without CW.
Regime for Schedule 1 chemicals and facilities related to such chemicals
INITIAL INSPECTION: Every facility involved in Schedule 1 chemical activities(single small-scale facility)[4] will be subject to aninitial inspection after it is declared.[5] The purposeis to: (a) verify the declared information;[6] (b) workon the Facility Agreements; and (c) establish the number, intensity, duration,timing and mode of inspections for a particular facility which is basedon the risk to the object and purpose of the CWC posed by the relevant chemicals,characteristics of the facility and the nature of the activities carriedout there[7]. The initial inspection is to be carriedout promptly after a facility is declared. Since the Facility Agreements,which are based on the initial inspections, are to be concluded not laterthan 180 days after entry into force of the CWC for the State Party,[8] the initial inspection shall be accomplished in timeso that the 180 day time-frame can be maintained.
ON-SITE INSPECTIONS: Each facility is subject to systematic verificationthrough on-site inspections and monitoring with on-site instruments. Thepurpose is to verify that the quantities of Schedule 1 chemicals are correctlydeclared and, in particular, that their aggregate amount does not exceedone tonne.[9] Each facility subject to an inspectionis to have its own Facility Agreement with the OPCW, based on a Model Agreement,covering detailed inspection procedures for the facility.[10]The aim of the Facility Agreement is to facilitate future inspections, toexplain and protect confidential business information (CBI) and to assurethat the time-frames for the inspection can be kept.
Regime for Schedule 2 chemicals and facilities related to such chemicals
INITIAL INSPECTION: Verification of Schedule 2 facilities is to be carriedout through on-site inspections at declared plant sites comprising at leastone plant which produced, processed or consumed any chemicals in any ofthe three previous calendar years (or which are anticipated to produce,process, or consume such chemicals in the next calendar year).[11]Thus, any facility under control of a States Party that produces, processesor consumes Schedule 2 chemicals is subject to the Schedule 2 inspectionregime. Following their declaration, these plant sites will be subject toan initial inspection and, subsequently, to routine inspections. Initialinspections, as outlined in the CWC, are to take place as soon as possible,but preferably not later than three years after declaration.[12]The negotiation of the Facility Agreement can occur at any time during thesethree years but is to be concluded not later than 90 days after the completionof the initial inspection.[13] The general purpose ofthe initial inspection is, to: (a) verify declarations; (b) obtain additionalinformation for future inspections; (3) work on the draft Facility Agreements;and (c ) make the risk assessment.
PURPOSE OF THE INSPECTIONS: The main purpose of an on-site inspections ofdeclared Schedule 2 facilities is to verify the non-production of Schedule1 chemicals, the consistency with declarations of levels of production,processing or consumption of Schedule 2 chemicals, and non-diversion ofSchedule 2 chemicals for activities prohibited under the CWC.[14]Keeping the inspection goal in mind it is particularly important to noticethe relatively short 96 hour time limit for these inspections.[15]The inspected site will be notified of the inspection at least 48 hoursbefore the arrival of the inspection team.[16]
A Facility Agreement will cover the actions of the routine inspected plantsite and of the inspectors. The aim of a Facility Agreement is to: (a) facilitatethe inspections; (b) explain and safeguard CBI; (c) specify the frequencyand intensity of inspections; (d) specify the detailed inspection procedures;and (e) promote the time-frames for an inspection. The Facility Agreementsfor the declared plant site are to be concluded not later than 90 days aftercompletion of the initial inspection. The basis will be a Model Agreementas developed by the PrepCom.[17] The object of theseFacility Agreements is to eliminate the need for access negotiations everytime the site is inspected and to establish routine procedures which willbe related to inspection activities, such as plant record checks, sampletaking and analysis, and specific areas to be inspected. However, thereis nothing preventing the inspection team from requesting a re-negotiationof wider access as agreed upon in a Facility Agreements. If there is noFacility Agreements in place, the access for the inspection team shall behandled as specified under the rules for managed access under challengeinspection.
The Facility Agreements will be developed so that they allow the inspectedsite to explain and deal with their confidentiality concerns and at thesame time give the inspectors a routinized way of checking the site's compliance.
The inspected State Party and the TS may agree that a Facility Agreementfor a certain declared plant site is not needed.[18]
Model Agreements
Under Part III of the VA it is outlined that Facility Agreements are tobe based on models and govern in detail the conduct of inspections at aspecific facility. The Model Agreement is also to include provisions totake into account future technological developments.[19]
During the course of the elaborations of the expert group on 'Declarationsand Model Facility Agreements' in the PrepCom, respective provisions for'Model Facility Agreements' (MFAs) have been developed[20],but are still under review. These MFAs, once finally agreed upon, have tobe adopted by the Conference of the States Parties at its First Session.They will form the basis for the negotiation of any specific Facility Agreementon an individual site. Based upon this precondition, each MFA is type-specificand relates to a well-defined category of facilities. In general, MFAs haveto be designed in a way that allows sufficient flexibility for the negotiationof an individual Facility Agreement. The expert group has developed a basicstructure of MFAs, based upon a 'Section Approach'. Seventeen differentsections contain specific aspects relevant for such an MFA, ranging from'general provisions', 'inspection equipment', 'conduct of inspection' until'debriefing' activities. In addition, attachments will be added, containingdetails related to the implementation of site-specific agreements and referenceannexes (containing references from the CWC and information submitted bythe inspected State Party) .
Regime for Schedule 3 chemicals and facilities related to such chemicals
Only on the explicit request of the State Party will a Facility Agreementbe prepared. In the absence of a Facility Agreement, there are no limitsto an inspection team's access to the declared portion of the site. Anyfacilities which produce Schedule 3 compounds and which wish to limit fullaccess should pursue a Facility Agreement. Access to records and documentationcan be restricted by the inspected States Party.[21]
The inspection period is restricted to 24 hours, although it can be extendedby agreement.[22] The notification time before arrivalat the inspection site is 120 hours.[23]
Regime for other chemical production facilities
States Parties are required to declare 'other chemical production facilities'.This will cover a large number of plant sites, including any facility thatproduces more than 200 tonnes of unscheduled discrete organic compounds(DOC) and facilities that have or will produce more than 30 tonnes of unscheduledorganic chemicals containing phosphorus, sulphur or fluorine (PSF).[24]
There is no requirement to develop a Facility Agreement for these kindsof facilities. However, States Party have the right to request negotiationsof a Facility Agreement.[25] Commercial plant sitesthat can foresee difficulties in the negotiation of site access may asktheir National Authority to request for the development of such a FacilityAgreement.
The inspection time is limited to 24 hours unless it is extended by an agreementbetween the inspection team and the State Party.[26]The inspected State Party shall be informed about an inspection under PartIX, 120 hours before the arrival of the inspection team at the inspectionsite.[27] These are the same time-frames as for inspectionsof Schedule 3 facilities.[28]
Challenge inspections and Facility Agreements
As regards the conduct a challenge inspection, the following will applyto facilities declared pursuant to Articles IV, V and VI:
(1) For facilities with Facility Agreements, access and activities within the final perimeter shall be unimpeded within the boundaries established by the agreement;
(2) For facilities without Facility Agreements, negotiation of access and activities shall be governed by the applicable general inspection guidelines established under the CWC. In other words, managed access in a challenge inspection cannot be used to limit access that has already been agreed upon for routine inspection; and
(3) In regard to access beyond that routinely provided under Articles IV, V and VI, the provisions on managed access will apply.[29]
III. The role of a National Authority in the Facility Agreement process
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[30].
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 nationallegislations. 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.
Since Facility Agreements will, to a certain extent, have 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 an 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.[31]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.[32]
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. For the State Party this would certainly mean a loss of confidenceat the political level. Both could be prevented if the National Authorityis granted at least certain rights to control the correctness of declarationssubmitted by 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 goal to keep their legislation as clear and short as possible.Whatever the reasons for this defensive approach in many countries are,each State Party should consider this question seriously and take a decisionon this matter with care, whatever the result may be.
IV. National implementing legislation and Facility Agreements
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. The initial inspection will have a majorimpact on the negotiations of a Facility Agreement. The second questionis whether and to what extent the national implementing legislation addressesthe problem of Facility Agreements. The legislation may include the empowermentof a National Authority to negotiate and conclude a Facility Agreement andmay define the role of a facility owner in the negotiation process as well.However, it must be stressed that the selection of legislation reviewedis dependent on the availability of documentation at the time of writing.
Australia
The Australian Chemical Weapons (Prohibition) Act (CWA)[33]was enacted on 25 February 1994 after final approval by both houses of Parliament,and the instrument of ratification was deposited with the Secretary-Generalof the United Nations on 6 March 1994. Most of its provisions will enterinto force parallel to the entry into force of the CWC[34].
The National Authority
The Chemical Weapons Convention Office was established pursuant to the CWAas a special unit within the Australian Safeguards Office and will serveas the National Authority in accordance with the relevant provisions ofthe CWC. The CWC Office will be headed by the Director of the SafeguardsOffice established under the Nuclear Non-Proliferation (Safeguards) Actof 1987 and will be responsible for implementing the CWC nationally in allits aspects[35]. This includes inter alia theadministration of the permit system established under the CWA. A permitwill be required for all facilities that produce or use scheduled chemicalsabove the threshold provided for in the CWC. Inspectors will be appointedto the CWC Office and will inter alia be responsible to participatein the national escort teams and to co-operate with Australia's affectedindustry. Owing to the fact that the number of facilities subject to internationalinspections conducted by OPCW teams are of a limited number, it is currentlyanticipated that two inspectors will suffice to carry out the respectivetasks.[36] However, there is an option to designateother government officials as inspectors if required.[37]
Inspection rights and access to facilities
Australia has taken a unique approach to inspection rights and access tofacilities, both for national and international inspectors. Part 5 of theCWA, Verification Procedures, is thus of particular interest. In contrastto the approaches taken by the countries reviewed below, Part V, DivisionI of the CWA provides for 'Compliance inspections by national inspectors'.Such compliance inspections can be carried out even in the absence of aninternational inspection. According to Section 33, the inspection may beconducted 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'.[38] Any suchnational inspection has to be carried out in conformity with the relevantsafety procedures applicable at the facility and may only be conducted withthe consent of the owner of a declared facility or under a warrant issuedby a magistrate on the basis of an application by a national inspector.
From the provisions of Section 2 in conjunction with Section 36 it is notsufficiently clear at what date the relevant provisions regarding nationalcompliance inspections will enter into force. However, they are supposedto commence earlier than those for international inspections,[42]and since they are linked to either the existence of a Facility Agreementor to the first permit or notification year[43] it isarguable that they will commence parallel to the entry into force of theCWC.
Facility Agreements
Besides the above-mentioned references to Facility Agreements, Section 76specifically deals with this issue, providing that:
(1) The Minister, on behalf of Australia, must enter into an agreement with the Organization in relation to each single small-scale facility, each protective facility, and each research facility at which it is anticipated that more than 100 grams of Schedule 1 chemicals will be produced during the year to which the permit relates.
(2) The Minister on behalf of Australia, may enter into an agreement with the Organization in relation to any other Schedule 1 facility, or any Schedule 2 or 3 facility or any OCP facility.
(3) A facility agreement that is entered into under subsections (1) or (2) may cover such matters as the Minister thinks necessary to give effect to the Convention.
It is worth noting that the Minister of Foreign Affairs has wide discretionregarding the contents of a Facility Agreement and thus will be able toreact adequately to any request regarding the contents of a Facility Agreement,which mainly will be based on the Model Agreements currently developed bythe PTS and PrepCom (see above). It is further worth noting that Section76 makes no indication of the role facility owners are to play in the procedure.The fact that facility owners are not granted specific procedural rightsunder this act, however, does not necessarily mean that they have no rightat all. The extent of their participation will depend both on practicaland legal considerations.
In this context it should be asked whether the regulations on 'nationalcompliance inspections' are sufficient to grant national inspectors a rightof broad access to a facility during the consultations on a Facility Agreement.The rather wide wording of Section 33 (a), cited above, suggests that eventhough this situation is not explicitly mentioned, national inspectors havethis right. Such an inspection would mainly be carried out to establishwhether or not the information submitted by a facility is in compliancewith the reporting obligations pursuant to the relevant provisions of theCWA.
In conclusion it can be said that Australia has adopted a rather advancedapproach with regard to inspection powers assigned to its National Authority.However, with regard to Facility Agreements it must be reminded that proceduralrights of facility owners in the Facility Agreement procedures are not definedat all. It, thus, is arguable that a consideration to introduce such proceduralrights may serve a better balance between the verification interests ofthe National Authority on the one side and the interests of facility ownersto maintain an non hampered production process and to protect confidentialinformation on the other side.
Sweden
Sweden ratified the CWC on 17 June 1993 following the approval of the CWCRatification Act on 7 June 1993 by Parliament. A bill on implementing legislationwas introduced into Parliament in fall 1993[44] andapproved during the 1994 spring session containing a number of amendmentsto existing acts as well as a proposal for a new Act on Inspections.[45] Amendments to existing legislation were inter aliaproposed to the Act on War Material,[46] the Act onItems which could be used for Mass Destruction Purposes (the Dual-Use Act),
The National Authority
This far, no formal decision has been taken regarding the final structureof the National Authority. Although, the Ministry of Foreign Affairs willbe designated as the National Authority and will serve as the national focalpoint for co-operation and co-ordination with the OPCW. The Ministry ofForeign Affairs will work in close co-operation with other authorities inimplementing the CWC and will serve as an umbrella organization. Other tasks,such as the collection of information and supervision of the national chemicalindustry will be designated to the Chemical Inspectorate, established underthe Act of Chemical Products.[53] However, this far,the designation of tasks has only been concluded for those parts of thelegislation already in force, as mentioned above. The collecting of informationfor declarations is designated to the Chemical Inspectorate[54](for all Schedule 1, 2 and 3 chemicals, and other discrete organic chemicals).
Inspection rights and access to facilities
In Sweden any governmental action interfering with the personal or economicaffairs of an individual protected by the Constitution must be based ona law. For this purpose the above mentioned Act on Inspections was proposedto Parliament. This bill, the Dual-Use Act and the Act on War Material definethe powers of national and international inspectors regarding access toa site subject to international inspections. Under the Act of Inspectionsthe Government will decide which authority that is to attend the internationalinspectors. The Government will also take decision regarding the specificmeans to be used during the inspection.[55] The rightto access for national inspectors is construed parallel to those of internationalinspectors. In addition, the Dual-Use Act provides a legal basis for nationalinspections to verify whether or not the declarations submitted by a facilityare correct.[56]The Dual-Use Act states:
Anyone who has made a declaration under [[section]] 6 (b) has to submitinformation and documents which may be necessary in the verification ofthe declarations. Following a request by the Government or the authorityappointed by the Government to receive declarations (e.g., the NationalAuthority), the company or person making the declaration must submitthe 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.[57]
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.
Facility Agreements
The Swedish legislation enacted this far does not directly address the questionof Facility Agreements and the authors are unaware of any draft legislationintended to address the problem. This is probably owing in part to the factthat Sweden has refrained from implementing the CWC nationally through asingle legislative act. A second reason may be that Sweden still has nottaken a final decision regarding the structure of its National Authority.Another reason is that Sweden does not possess many facilities which requireFacility Agreements. However, the most important reason is that the Acton Inspections is very broad in scope. The Government is to take decisionsduring an inspection regarding the extent of access to an inspected facility.
Germany
In Germany the ratification of an international treaty requires the priorapproval by Parliament and the Federal Chamber, the representative organof the states. Since most of the regulations of the CWC are not self executing,additional implementing legislation is required to implement the obligationsof the Convention. Owing to the very short time lines (i.e., for submittingdeclarations to the OPCW after entry into force of the Convention), theFederal Government decided to submit both the Chemical Weapons ConventionAct,[59] which empowers the Federal Government to ratifythe CWC, and the respective Act for Implementing the CWC[60]to the legislative organs at the same time. Germany ratified the CWC on12 August 1994[61] after the Implementation Act waspublished in the Federal Gazette on 9 August 1994. Owing to the fact thatthe CWC has not yet entered into force, Germany has adopted a two step approachregarding entry into force of specific regulations contained in the Act.Whereas the basic provisions related to prohibited activities, powers andfunctions of the National Authority as well as those related to declarationsand some of the penal sanctions will enter into force six months prior tothe entry into force of the CWC, all other provisions, especially thoserelated to inspections, will enter into force on the date of entry intoforce of the CWC.[62]
The National Authority
The National Authority in Germany will consist of three elements: (a)the Head of the National Authority, assigned to the Ministry of ForeignAffairs; (b) a military component under of the Minister of Defence;and (c) a civilian component under the Minister of Economics.
A special section within the Ministry of Foreign Affairs will be the supervisingauthority. It will serve as the national focal point for communication andco-operation between the National Authority and the OPCW and will representthe National Authority externally. Declarations will be submitted by theHead of the National Authority to the OPCW based on the information submittedby the competent national agency. The Ministry of Foreign Affairs will alsobe responsible for the transfer of the information it receives from theOPCW to the subsidiary agencies (e.g., the request for an inspection).
The Ministry of Defence will have the responsibility for the military component.The tasks with regard to military installations will be assigned to theVerification Centre of the Bundeswehr in Geilenkirchen which hasalready acquired experience in the verification of other arms control treaties(e.g., the CFE Treaty). However, the activities of the Verification Centrewill be restricted to the escorting of international inspectors at militaryfacilities only, if not provided otherwise by law.
The major responsibility for effectively implementing the CWC at the nationallevel is assigned to the Export Control Office (Bundesausfuhramt) atEschborn, a subsidiary agency of the Ministry of Economics. The NationalAuthority will most likely be established as an individual section. Forthe preparatory phase a Working Group is established to identify the futuretasks of the National Authority and to work on its organisational structure.Currently, the Export Control Office was only responsible for the controlof prohibited exports of CW-related material.
According to Article 5 (1) of the Implementation Act the Export ControlOffice will have the primary responsibility to collect, process and evaluatethe data required by the Convention. The Export Control Office further hasthe right to request any information from a facility if this is requiredby the Act or by additional legislation to be enacted. In addition, nationalinspectors may request access to business documentation or to a facilitysite during normal working hours.[63] However, the rightof access to a production site requires that reasonable doubts about thecompliance of a facility with relevant provisions of the ImplementationAct and its subsequent regulations already exists.
The Federal Government is also empowered to enact detailed regulations bydecree laws. Such legislation may regulate the frequency, periods to bereported upon, contents and form of data reporting, and the means and timelimits for the submission of such information. The necessary regulationsare currently in the drafting stage and are expected to be completed soon.
Another important aspect with regard to the collection of data is, of course,the confidentiality of business information. Therefore the use or transferof such information (e.g., to other agencies) is restricted to such usesas provided for in Article 6 of the Act.
Inspection rights and access to facilities
The regulations with regard to inspections mainly reflect the rights andpowers of the international inspectors as provided for in the CWC. In sofar, as the CWC mentions specific responsibilities for the leader of theescort team, they are also enumerated in Article 10 of the Act (i.e., thetaking of samples during an inspection or access to a facility outside ofregular working hours). Corresponding regulations with regard to the co-operationduties of an inspected facility with the international inspection team andthe escorting team are included in Article 11 of the Act.
The German National Authority will have no right to conduct national complianceinspections as it is the case in Australia and Sweden. According to Article7 of the Implementation Act, the National Authority has the right to requestclarification, to control business documents and to conduct on-site inspectionsin the offices and facilities of a company. However, as indicated aboveany such right to access to a facility would require the existence of reasonabledoubts that a facility is not in compliance with its obligations under therelevant legislation.[64] Thus, the right to accessas provided for in Article 7 has to be seen as an enforcement measure incase of a non-compliance, rather than a right to conduct national complianceinspections.[65]
Facility Agreements
Article 13 of the Act empowers the Export Control Office to negotiate FacilityAgreements with the OPCW and to conclude such arrangements with the OPCWin co-ordination with the Ministries of Foreign Affairs and Economics.In cases where there is an obligation to conclude a Facility Agreement,the National Authority is requested, at least, to consult with the managementof an affected facility before the negotiations with the OPCW start andbefore a Facility Agreement is finally concluded. In all other cases (e.g.,Schedule 3 facilities and other chemical facilities) prior consent of thefacility management is required. This Article will enter into force parallelwith entry into force of the CWC. The most interesting aspect of this regulationis that it establishes certain important rights for the owner of a facility,most importantly a right to participate in the procedure and to be keptinformed about the process.
In conclusion, neither the powers assigned to the National Authority underArticle 7 nor Article 13 provide sufficient basis for national inspectionsduring consultations on a Facility Agreement. In Germany any restrictionof a basic right protected by the Constitution must be based on a law whichhas to be precise and specific. The above-mentioned provisions (Articles7 and 13) are certainly lacking both requirements. Given the adjudicationof German Administrative Courts which always places a high priority on theprotection of the privacy, a practice of national inspections on the currentregulatory basis would be more than weak. Thus, if the German National Authorityis given task to conduct national compliance inspections, an amendment tothe Implementation Act would be required.
One of the reasons that such a regulation was not deemed necessary was thegeneral reluctance of the chemical industry to accept additional supervisorymachinery besides the international one. In addition, the German chemicalindustry has committed itself to support the goals of the CWC and was veryco-operative throughout the implementation process. Thus, large segmentsof the chemical industry are well informed about the impact of the CWC onthem. However, it has to be remembered that the chemical industry was mainlyrepresented by its Chemical Manufacturers Association to which not necessarilyall affected companies belong. Thus, it cannot be generally precluded thata problem in this context may arise. The Federal Government must take apolitical decision as to whether or not it wishes to have an additionalinstrument at hand to enforce compliance with the provisions of the CWCand the respective implementing legislation.
Switzerland
Switzerland ratified the CWC on 10 March 1995. In September 1994 Switzerlandadopted its preliminary implementing legislation. As Switzerland has greatinterest in being one of the original members of the CWC once it entersinto force and owing to the uncertainties at what date the CWC will enterinto force, Switzerland decided to pass preliminary legislation to makesure that it will be on the train. The Draft Decision of the Federal Councilon the Implementation of the CWC[66] which was submittedto Parliament on 20 April 1994 was finally passed by both Houses in September1994. This legislation has not yet entered into force. The correspondingordinance, which will provide inter alia the basis for the collectionof information, is currently in the drafting process and will at best befinalized in early summer. It is anticipated that the interim Decision willbe removed by an amendment to already existing legislation, namely the WarMaterials Act[67], and the enactment of a new Dual-UseAct both of which are scheduled to enter into force on 1 January 1996
The National Authority
The Ministry of Foreign Affairs will be designated as the National Authority(i.e. serving as the national focal point for implementing the CWC). Thecollection of information will be assigned to the Federal Agency of ExternalEconomic Affairs (Bundesamt für Außenwirtschaft) whichhas gathered experience in controlling CW related items. Other not yet determinedtasks, will be assigned to the AC-Laboratory at Spiez.
According to current estimates there is no facility producing Schedule 1chemicals and only 3 facilities producing Schedule 2 chemicals.[69] Since these assumptions are based on preliminary informationit may well be that additional Schedule 2 facilities exist. However, thecontrol tasks for the National Authority will remain rather limited. Accordingly,it is anticipated that many of the tasks can be assigned to a single person.
Rights of inspection and access to facilities
Article 2 of the Decision provides for the Federal Council to enact regulationson inspections if necessary. Since the Decision in fact not refers to internationalinspections this will be part of the currently drafted Ordinance which,however, most likely will not contain a provision regarding national complianceinspections.
Facility Agreements
The same applies in regard to Facility Agreements. It remains to be seenwhat the final content of the respective Ordinance will be.
United States
In March 1994 the Foreign Relations Committee of the US Senate opened itsratification hearings on the CWC. An agreement to ratify the CWC was notachieved by the end of the 103rd Congress, and the matter is therefore nowamong the priority issues on the agenda of the various Senate Committeesof the 104th Congress.[71] The delay in ratificationis partly owing to unsolved security concerns among members of the relevantSenate Committees.[72] According to some optimisticassessments there is hope that the Senate will arrive at a decision in Aprilor May 1995. Ratification by the USA would without doubt constitute a majorsuccess in the efforts to facilitate the entry into force of the CWC atan early stage. The draft legislation for implementing the CWC was transmittedby the US Arms Control and Disarmament Agency to the Congress on 27 May1994 and was introduced in the House of Representatives on 28 July 1994,
The National Authority
According to Section 101 of the Draft Chemical Weapons Convention ImplementationAct of 1994 (CWCIA) the President is to establish a National Authority toserve inter alia as the national focal point for co-ordination andco-operation with The Hague. The Draft further provides that the Departmentof Commerce will be responsible for the collection of required informationand to promulgate the necessary regulations.[74] Toavoid unnecessary duplication of reporting the National Authority shallco-ordinate its activities, to the extent possible, with other agencieswhich are already in possession of required information.[75]In addition, the CWCIA provides for rather extensive regulations on confidentialbusiness information. This far, without the implementing legislation inforce, only preliminary decisions can be taken as to the future structureof the National Authority and a final decision cannot be taken until entryinto force of the CWCIA.
Inspection rights and access to facilities
Like German and Swedish legislation, the CWCIA defines inspection rightsfor both national and international inspectors parallel. Thus should theBill enter into force unchanged, the National Authority would have no rightto conduct national compliance inspections. Given the fact that especiallythe USA has always been concerned about the protection of confidential informationand possible constitutional conflicts resulting from ratification of theCWC, it appears rather unlikely that the US Government will make a movein this direction.[76] Besides that, any such move wouldcertainly be opposed by the US chemical industry.
Facility Agreements
Regarding Facility Agreements the Draft Implementation Act contains an interestingprovision. Section 401 (f) on Facility Agreements which 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 in its present form goes farbeyond the respective German regulations since it 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. 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 agreements, 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.
Implementing legislation in other countries
Finally, it should be mentioned that information exists for a number ofother countries which are not included in this review. Such informationwas delivered primarily at previous regional seminars. However, since itwas impossible to obtain official documents of existing or draft legislationfrom these countries and the information available, this far is insufficient,the authors decided not to include such information for the purpose of thispresentation. In addition, it should be mentioned that for a number of countries,including South Africa, Romania and Norway, some preliminary documentationwas available, but of only a very general nature. Finally, the authors wereunable to include the Dutch (draft) legislation, which will be includedin a revised version of this paper later this year.
V. Relevance of the problem to countries present at the Minsk RegionalSeminar
Unfortunately, the authors were unable to obtain texts of existing ordraft implementing legislation from countries present at the Minsk RegionalSeminar. However, many of the problems described above that are occurringin Western countries will be similar or comparable for states in transitionto market economy and rule of law systems. A key element in the transitionprocess is the attribution of constitutional rights to economic actors (i.e.,commercial enterprises etc.). If countries in transition establish authoritiesto control the implementation of the CWC and assign to their respectiveNational Authorities enforcement powers, the corresponding legislation musttake into account the above-mentioned constitutional rights and rule oflaw principles. An example which demonstrates these general observationscan be found in the new Russian Constitution, Article 34 of which introducesa general guarantee for freedom of economic activities, which implicitlyincludes the protection of private property. In many Western countries theprinciple of inviolability of private homes often includes the protectionof offices as well. However, Article 25 of the new Russian Constitutionexplicitly protects only the inviolability of private homes. This may leadto difficulties as the protection of confidential business information whichis an essential element of the guarantee of economic freedom in a marketeconomy. In addition, commercial enterprises acting in a competitive economymust be sure that competitors do not have access to such confidential information.An example of the regulatory need to define protected information may beseen in a decision issued by the Russian Government in 1991 listing informationwhich cannot be considered confidential.[77] This listinter alia mentions information regarding violations of environmentalregulations as well as information on environmental damage that has alreadyoccurred. It would be along these lines that decisions will have to be taken.
However, to facilitate a better understanding of the implementation processesin the countries of this region, the authors would be grateful to receiverelevant information (i.e., texts of approved legislation and draft legislationas well).
VI. Conclusion
In conclusion it can be said that states have adopted different approacheson this matter this far. Australia and Sweden have taken a unique approachas regards inspection rights for national inspectors. The same applies tothe draft US legislation on Facility Agreements and the participation offacility owners in the negotiation processes. Both approaches are currentlythe most advanced.
This contribution is not intended to arrive at any recommendations. AnyState Party involved in the implementation process, however, should addressthis problem seriously. This far there is good reason to assume that, inpart, this problem was simply neglected in the implementation processes.Whatever option a State Party chooses, it should be sure that it has tackledall of the problems involved in the implementation process. However, itis submitted that Facility Agreements will be too important in the implementationof the CWC to remain completely unregulated.
[1] CWC Article VIII 34( c)
[2] VA Part VIII paragraph 19 and Part IX paragraph 16.
[3] For Schedule 1 facilities, this specifies the provisionsunder Part IV.
[4] Both single-small-scale facilities and other facilities;see Part VI paragraphs 8-12.
[5] Part III paragraph 1.
[6] Part VI paragraph 24.
[7] Part VI paragraph 23.
[8] Part III paragraph 3 and Part IV paragraphs 25 and31.
[9] Part VI paragraph 21.
[10] Part VI paragraph 25.
[11] 10 kg of particular chemicals in Part A of Schedule2.
[12] Part VII paragraph 16.
[13] Part VII paragraph 24
[14] Part VII paragraph 15.
[15] Part VII paragraph 29.
[16] Part VII paragraph 30.
[17] Part VII paragraph 24.
[18] Part VII paragraph 24.
[19] On the following sessions (from 1994) the PrepComhas drafted, proposed, etc. model agreements: PC-IX/B/WP.2, PC-VII/B/WP.9,PC- VII/B/WP.7, PC-VI/B/WP.16, 10, 9, 3 and 2.
[20] 'Expert Group on Declarations and Model FacilityAgreements: First Report', PC-VI/B/W P.16, 25 Mar. 1994.
[21] Part VIII paragraph 21.
[22] Part VIII paragraph 24.
[23] Part VIII p aragraph 25.
[24] Part IX paragraph 1.
[25] Part IX paragraph 16.
[26] Part IX paragraph 20.
[27] Part IX paragraph 21.
[28] Part VIII paragraphs 24, 25.
[29] Part X paragraph 51.
[30] 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.
[31] For a discussion of this problem see R. Sutherland,T. Kurzidem and T. Stock, The Role and Function of a National Inspectorin the National Authority under the CWC, paper 5 in the series of theSIPRI-Saskatchewan-Frankfurt Group on National Implementation of the CWC,presented at the Pretoria Regional Seminar, September 1994; also publishedin PTS Series on Occasional Papers- No. 7 at pp. 186-194.
[32] Ibidem.
[33] This section was written on the basis of the 'ChemicalWeapons (Prohibition) Bill introduced to the Senate on 16 December 1993,which was subsequently adopted by Parliament in January 1994. The authorsare not aware of any substantial changes prior to the adoption, especiallynot to any of the sections referred to below.
[34] Section 2 (1) - (4).
[35] See Sections 86 - 89.
[36] See 'Australia's Approach to National Implementationof the CWC', paper submitted to the Seminar on National Implementation ofthe CWC, The Hague, 30 September 1994, p. 2.
[37] Section 92.
[38] Section 34 (1) (a) - (g).
[39] This procedure is governed by Section 50 of theCWA which inter alia requires a statement of the applicant regarding thepurpose of an inspection for which a warrant is issued.
[40] Section 36.
[41] 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)).
[42] Section 2 (4).
[43] Section 36.
[44] Governmental bill, prop 1993/94:120.
[45] Svensk författningssammling (Official Gazette),SFS 1994: 118, introduced on 7 April 1994.
[46] SFS 1994: 122, introduced on 7 April 1994.
[47] SFS 1994: 121, introduced on 7 April 1994; thisact has changed name into 'The Act on Strategic Products'.
[48] SFS 1994: 119, introduced on 7 April 1994.
[49] SFS 1994: 120, introduced on 7 April 1994.
[50] SFS 1994: 534, introduced on 26 May 1994, providesfor the declaration of Schedule 1 chemicals.
[51] SFS 1994: 535, introduced on 26 May 1994, providesfor declarations of Schedule 2 and 3 chemicals.
[52] Both Ordinances entered into force the 1 July 1994.
[53] SFS 1985: 426.
[54] Relating to Schedule 2 and 3 chemicals (Swedishterm: Kemikalieinspektionen).
[55] Act on Inspections [[section]] 2.
[56] Dual- Use Act [[section]] 6 (c) 2 subparagraph.
[57] Dual-Use Act [[section]] 6 (c); an unofficial translationmade by the author.
[58] Government bill, prop 1993/94:120, p.55.
[59] Gesetz zum Chemiewaffenabkommen, Bundesgesetzblatt(Federal Gazette) II 1994, p. 806.
[60] Ausführungsgesetz zum Chemiewaffenabkommen,Bundesgesetzblatt (Federal Gazette) I 1994, p. 1954.
[61] See 'Ratifikationsurkunde bei UN in New York hinterlegt',Frankfurter Rundschau, 15 August 1994, p. 4.
[62] Article 21.
[63] Article 7.
[64] See the explanatory note to the draft of the ImplementationAct when introduced into the German Parliament, Deutscher Bundestag, Drucksache12/7207, p. 14.
[65] This view is explicitely confirmed by the relevantpassage of the explanatory note (see note 63).
[66] See explanatory note upon introduction to the SwissParliament, 'Botschaft betreffend das Übereinkommen über das Verbotder Entwicklung, Herstellung, Lagerung und des Einsatzes chemischer Waffenund über die Vernichtung solcher Waffen (Chemiewaffenübereinkommen,CWÜ) vom 20. April 1994', 94.037.
[67] Kriegsmaterialgesetz, SR 514.51.
[68] See the explanatory note at p. 35 (note 66).
[69] See explanatory note at pp. 31-32 (note 66).
[70] See explanatory note at p. 39 (note 66).
[71] U.S. Senate Republican Committee, 'Legislative Forecast104th Congress, 1st Session', Washington D.C., 4 January 1994 (The documentwas retrieved via Internet, thus no page references can be given).
[72] U.S. Senate Republican Policy Committee, 'Shouldthe Senate Ratify the Chemical Weapons Convention?', Washington D.C., 6October 1994.
[73] 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.
[74] Section 301 (a).
[75] Section 301 (b).
[76] Due to the limited space the authors do not enterinto the details of the further inspection regulations.
[77] Decision of the Government of the RSFSR of 5 December1991 No. 35 'About the register of information, which cannot constitutecommercial secrets, Sobranie Postanovlenii Pravitel'stva Rossiiskoi Federatsii1992, No. 1-2, Pos. 7.