National Implementation Efforts
Review Conference Documents
National Implementation Measures
Article VII, paragraph 1, of the Chemical Weapons Convention (CWC) states that "Each State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention." Certain national implementing measures are essential to the process by which States Parties ensure that individuals or groups do not engage in prohibited activities. Effective implementation of national measures by each State Party helps to reduce the threat posed by chemical weapons both to its own residents and to other States Parties and is an important tool in the fight against chemical terrorism.
The United States views with great concern that, with the CWC already in force for over five years, many States Parties appear still not to have fulfilled this most fundamental of obligations. According to the most recent information available from the OPCW Technical Secretariat (TS), only 55 percent of States Parties have complied with Article VII, para 5, and informed the OPCW of the measures they have taken to implement the CWC, raising the troubling possibility that nearly half of the States Parties have not taken any such measures. Additionally, according to the TS, based on available information only about one-quarter of States Parties have adopted legislation covering all key areas essential to adequate domestic enforcement of CWC obligations. In order to comply with many of the CWC's provisions, each State Party must adopt all the necessary national measures to implement its obligations under the Convention. For example, TS analysis indicates that "the absence of national implementing legislation impairs the ability of States Parties to make accurate declarations" of commercial facilities (WGRC-1/S/5, para 3.10).
Failure to adopt necessary national implementation measures could facilitate chemical weapons proliferation and noncompliance. We cannot take comfort from the fact that most States Parties have neither declared chemical weapons stocks nor host a highly developed chemical industry. For example, trade in chemicals subject to regulation under the CWC is widespread. We should also expect chemical production capabilities and transactions in relevant chemicals to increase across the globe. Finally, there are many methods by which toxic chemicals can be developed for CW purposes under the most primitive of conditions by terrorists. All of these factors add urgency to the need for States Parties to adopt the necessary national implementation measures.
Implementation of Article VII: Seeking Compliance
One of the CWC Review Conference's (RevCon) primary goals should be to take specific steps regarding implementation of Article VII obligations on national implementation measures, with the objective of ensuring compliance by all States Parties. Political statements on this issue need to be reinforced by calls from the RevCon for specific follow-up action by the OPCW.
The starting point for addressing implementation and compliance with Article VII is to understand clearly the factual situation and the reasons for the lack of consistent State Party implementation of Article VII obligations. The TS has sought to obtain information from States Parties regarding implementation of Article VII, including a questionnaire on penal legislation in June 2002, and has summarized the responses for States Parties to consider, but the response level has so far been inadequate. Therefore, along with a general call for compliance with the CWC, the RevCon should call upon States Parties to comply with Article VII, para 5, and inform the OPCW of the legislative and administrative measures taken to implement the CWC, if they have not already done so. The RevCon should call upon States Parties to provide this information to the OPCW by the start of the 8th session of the Conference of the States Parties (CSP), which is scheduled for 20-24 October 2003. States Parties that have either not taken national implementing measures, in whole or in part, or are unable to inform the OPCW by the 8th CSP about the details of steps taken, should explain to the OPCW the reasons for this, as well as assistance that is needed. This data will be important to the TS and States Parties in developing measures to assist States Parties in meeting their obligations under Article VII. The RevCon should also call upon the CSP, at its 8th Session, to establish a timetable, based on a recommendation from the Executive Council (EC), regarding implementation of Article VII obligations, with the objective of ensuring compliance by all States Parties.
The United States understands that putting national measures in place can be a complicated process that takes time, and that limited resources may hamper implementation. Therefore, the RevCon should encourage States Parties and the TS to cooperate and seek to increase support to States Parties in adopting national implementation measures. The RevCon should encourage the OPCW to evaluate existing programs that support national implementation with a view toward identifying areas to be strengthened, new areas of support that are needed, and what programs should be de-emphasized or eliminated. Support, delivered either bilaterally or by the TS, should be tailored to the specific needs of the States Party concerned. Regional cooperation should be considered to address a lack of resources or expertise in individual States Parties.
The United States is prepared to provide assistance on request, bilaterally or in coordination with the TS, to States Parties that advise the OPCW that they do not have the technical or legal expertise, or support infrastructure to adopt national implementation measures, particularly as it relates to establishing an Article VI compliance program. Additionally, as part of its voluntary contribution to the OPCW in 2002, the United States earmarked up to USD 500,000 for international cooperation activities that assist States Parties to effectively implement the CWC. The focus of this assistance will be supporting States Parties in adopting national implementation measures.
Efforts to assist States Parties in meeting CWC obligations for national implementing measures should emphasize the following areas (most of which are identified by the TS in WGRC-1/S/5, para 4.1):
- Enacting measures to criminalize violations and punish violators of a State Party's domestic laws in accordance with Article VII.
- Establishing/designating and notifying a States Party's National Authority, in accordance with Article VII, paragraph 4.
- Ensuring that national implementation measures reflect the comprehensive nature of the CWC, covering all activities prohibited or required by the CWC involving the use of any toxic chemicals or their precursors, not just those listed on the Schedules of chemicals.
- Providing annual declarations on past and anticipated industry activities in accordance with Article VI;
- Monitoring transfers of scheduled chemicals and provisions of relevant information on such transfers, in accordance with Article VI;
- Imposing export restrictions and, in relation to Schedule 3 chemicals, compliance with the requirements for end use certificates, as required under Article VI and Parts VI to VIII of the Verification Annex; and
- Providing annual information on national programs related to protective purposes, in accordance with Article X, paragraph 4.
States Parties and the TS should seek to support States Parties that need assistance in meeting Article VII obligations, and the United States has committed resources to do so. However, if a State Party fails to meet this basic obligation, the OPCW should consider steps to redress this situation, including measures under Article XII. States Parties need to be confident that each State Party is committed to meeting its obligations under the CWC. Therefore, the RevCon should call upon the Executive Council, in cooperation with the TS, to closely monitor progress made toward achieving effective implementation by all States Parties of CWC obligations for national implementing measures, and at an appropriate time to consider and make its recommendations to the CSP regarding suitable measures to redress and remedy the situation and ensure compliance by States Parties with Article VII.
The RevCon should:
- a.) Affirm the importance of implementation of, and compliance with, Article VII obligations to adopt necessary national implementing measures;
- b.) Call upon States Parties, that have not done so either in whole or in part, to comply with their Article VII obligations;
- c.) Call upon States Parties, that have not already done so, to inform the OPCW by the 8th CSP of legislative and administrative measures taken to implement the CWC;
- d.) Call upon the CSP, at its 8th Session, to establish a timetable, based on a recommendation from the Executive Council (EC), regarding implementation of Article VII obligations, with the objective of ensuring compliance by all States Parties;
- e.) States Parties and the TS to cooperate and to support States Parties in putting national measures in place;
- f.) Encourage the OPCW to evaluate existing Technical Secretariat programs that support national implementation with a view toward optimizing assistance being provided;
- g.) Call upon the Executive Council, in cooperation with the TS, to monitor closely progress made toward achieving effective implementation of Article VII obligations by all States Parties, and, at an appropriate time, make suitable recommendations to the CSP; and
- h.) Call upon the CSP, based upon the recommendations of the EC, to consider and take the necessary measures to ensure compliance with Article VII and redress and remedy non-compliance, in accordance with Article XII.
[ RETURN TO 2003 CWC REVCON ]