The intrusive nature of the Chemical Weapons Convention’s (CWC) verification regime, coupled with the fact that it covers private chemical enterprises as well as government facilities, means that national implementation measures are of great importance. Article VII of the Convention addresses this topic in two principal ways. First, it requires States Parties to enact, if necessary, national legislation that will extend to individuals and companies prohibiting them from undertaking any activity prohibited by the Convention. Second, it requires each State Party to designate or establish a National Authority “to serve as the national focal point for effective liaison with the Organisation and other States Parties”.

THE NATIONAL AUTHORITY The National Authority plays a key role in the implementation of the Convention’s verification regime. While the OPCW provides mechanisms through which compliance is verified, the National Authority creates mechanisms through which compliance is achieved and demonstrated. The National Authority must be designated on or before the date of the entry into force of the Convention for the State Party concerned.

SIZE, STRUCTURE, MANDATE States Parties enjoy wide discretion in determining the size, structure, composition and mandate of their National Authorities. As the words “designate or establish” indicate, a State Party may either assign the task of acting as the National Authority to an existing government department or agency, or it may create an entirely new entity specifically for this purpose. Each State Party’s particular circumstances (i.e. whether or not it has chemical weapons, chemical weapons production facilities, Schedule 1 facilities, significant chemical industry or export-import activities relevant to the Convention; the amount of resources it can allocate to implementation, etc.) determine the composition, structure and mandate of its National Authority. The National Authority can be either a centralised entity with responsibilities covering all aspects of national implementation of the Convention, or a decentralised entity acting as a liaison between the OPCW and the multiple government departments or agencies responsible for specific aspects of national implementation. The administrative burden is not necessarily great. For States Parties which possess no chemical weapons and have little or no declarable chemical industry, the National Authority can be a body consisting of just one or two persons within a government department or ministry.

FUNCTIONS As the national focal point for liaison with the OPCW and other States Parties, the national data collection point and the facilitator of national implementation, an effective National Authority is of central importance to the effectiveness of the Convention itself. To meet its basic obligations, each State Party must be in a position to carry out the following basic tasks: (a) to submit all the required declarations, (b) to communicate with the OPCW, (c) to cooperate with other States Parties, (d) to facilitate OPCW inspections by cooperating with OPCW inspectors and receiving flight plans for non-scheduled aircraft, (e) to respond to the OPCW’s requests for assistance, (f) to protect the confidentiality of classified information, (g) to monitor and enforce national compliance, and (h) to cooperate with efforts to promote chemical activities for purposes not prohibited by the Convention. States Parties that are declared chemical weapons possessors will also have the major task of destroying their stockpiles and all production facilities (see Fact Sheet 6). All of these functions involve a State Party’s National Authority to a greater or lesser extent, and the National Authority’s mandate is defined accordingly.

NATIONAL IMPLEMENTING LEGISLATION Article VII, paragraph 1, sets out the basic obligation of each State Party to adopt the measures necessary to implement its obligations under the Convention (see box). An additional requirement with respect to legislation is specified in Article VI, paragraph 2: in the context of the regulation of the chemicals listed in Schedules 1, 2 and 3, each State Party is required to adopt the necessary measures to ensure that toxic chemicals and their precursors are only developed, produced, otherwise acquired, retained, transferred or used within its territory or in any other place under its jurisdiction or control, for purposes not prohibited under the Convention. Finally, States Parties are required to review their existing legislation “in the field of trade in chemicals in order to render them consistent with the object and purpose of this Convention” (Article XI, paragraph 2). The complex nature of these obligations means that each State Party must assess the steps that are necessary to ensure that the treaty will be implemented effectively and enforced within its jurisdiction. Depending upon the State Party’s constitution, its existing laws and the extent of its chemical industry, the steps the State Party has to take may be very few or quite extensive. In all cases, however, a review of existing legislation is in order.

SCOPE OF THE LEGISLATION The implementation of the Convention may affect several distinct spheres within a State Party: its military insofar as the Convention deals with means and methods of warfare; its police insofar as it addresses riot control agents and requires the enforcement of national laws and regulations; customs insofar as trade in controlled chemicals is involved; private industry insofar as the production, processing and consumption of scheduled chemicals and unscheduled discrete organic chemicals is monitored; and government in general insofar as each State Party is required to designatea National Authority and is granted representation in the OPCW. In addition, the Convention requires ongoing reporting on certain transfers of scheduled chemicals (see Fact Sheet 7).

Although the only specific requirement of Article VII is that each State Party adopt measures in three areas (prohibitions, penal provisions and extraterritorial application to its nationals), it is generally apparent that legislation is also necessary 1) to compel companies and other relevant entities to submit the information needed by the National Authority in order to compile accurate declarations, and 2) for export/import controls. The experience of the first three years in implementing the Convention has shown that comprehensive implementing legislation is the key to obtaining reliable, complete information to report to the OPCW. A recent survey of national implementing legislation showed that in addition to those areas in which it is explicitly required, several States Parties found it necessary to enact legislation related to as many as 14 other areas, including legal assistance, the legal definition of chemical weapons, declaration obligations, the regime for scheduled chemicals (regulation of Schedule 1 production/use, criteria for declaring Schedule 2 and 3 chemicals, import/ export controls), licensing of industry, access to facilities, inspection equipment, application of inspectors’ privileges and immunities, confidentiality, liability, the mandate of the National Authority and its enforcement powers, the taking of samples, and the primacy of the Convention.

The Secretariat has recently begun cooperating with other international organisations to develop an integrated approach to the sound management of chemicals. In view of the fact that many States are simultaneously trying to draft legislation to regulate chemicals under other treaty regimes such as the Montreal Protocol and the Basel Convention, and arrangements such as the Prior Informed Consent Procedure, the integrated approach aims to avoid conflicts between the legislative provisions of these agreements, and to streamline their administration. For States Parties with no chemical weapons and little or no declarable chemical industry, the basic National Authority structure needed to liaise with the OPCW can be placed under the umbrella of another regime, reducing considerably the administrative burden and costs, while at the same time satisfying Convention’s requirements.

COOPERATION AND LEGAL ASSISTANCE Article VII, paragraph 2 provides that “each State Party shall cooperate with other States Parties and afford the appropriate form of legal assistance …”. It is becoming apparent that there is a need to develop a framework within which the obligation to “cooperate and provide legal assistance” can be carried out. Such a framework will be necessary primarily for the prosecution and punishment of those who violate the requirements of the Convention. Its necessary components include the “criminalising” of activities prohibited under the Convention; the extraterritorial extension of penal legislation to acts committed by nationals abroad; the harmonising of penalties; and the inclusion of offences against the Convention in extradition treaties as “extraditable” crimes.

PRIVILEGES AND IMMUNITIES The legal basis for granting privileges and immunities to the OPCW and certain categories of officials (delegates, representatives, alternates, advisers, the Director-General, staff and experts) is found in Article VIII(E). The rationale for granting privileges and immunities is the same as that for granting them in bilateral diplomatic relations: they allow relevant individuals to carry out their duties independently, without interference by either the Host State or third parties, and without fear of retribution. The Convention envisages three types of privileges and immunities. First, the OPCW itself is granted “such legal capacity and such privileges and immunities as are necessary for the exercise of its functions” on the territory of a State Party. Second, delegates of States Parties (including alternates and advisers), the Director-General and OPCW staff have “such privileges and immunities as are necessary in the independent exercise of their functions in connection with the [OPCW]”. Finally, the members of OPCW inspection teams form yet another separate group, whose privileges and immunities are specified in Part II, Section B, of the Convention’s Verification Annex.

Except for members of inspection teams, the specific privileges and immunities to be granted to the OPCW, its officials and delegates are not enumerated in the Convention. The Convention provides only that these shall be defined in agreements between the OPCW and the States Parties concerned, and in a Headquarters Agreement. The OPCW therefore concluded a Headquarters Agreement with the Netherlands, where the OPCW is based. For other States Parties, the Secretariat has prepared a basic text which can be used as a basis for negotiating individual privileges and immunities agreements. The basic text accords functional privileges and immunities to the OPCW and, in varying degrees, to the Director-General and staff, as well as experts and representatives of States Parties participating in OPCW meetings. These functional privileges and immunities are consistent with those customarily granted to other international organisations and their staff and delegates.

FACILITY AGREEMENTS During an initial inspection at a facility or plant site, one of the tasks of an inspection team is to begin work on a facility agreement, which will govern all future inspections at that facility or plant site. Such agreements are required for all chemical weapons related facilities, facilities producing Schedule 1 chemicals, and Schedule 2 plant sites. With respect to the last category, however, the Secretariat and the inspected State Party can agree that an agreement is not necessary for a particular site. For plant sites producing Schedule 3 chemicals or unscheduled discrete organic chemicals, a facility agreement is not normally needed, although the inspected State Party may request one. Facility agreements are negotiated between the Secretariat and the inspected State Party, and are then submitted to the Executive Council for its approval.

CHEMICAL WEAPONS-RELATED AGREEMENTS Facility agreements for chemical weapons facilities can be divided into three main categories, corresponding to the type of facility—those for chemical weapons storage, production and destruction, respectively. These agreements govern inspections at the facilities and include provisions to take account for future technological developments. The contents of facility agreements are also dictated by the verification measures and activities specified by the Convention for each type of facility concerned and by relevant decisions taken by the Conference of the States Parties. (See Fact Sheet 6 for more on the destruction of chemical weapons.)

SCHEDULE 1 FACILITY AGREEMENTS As described in Fact Sheet 7, several types of Schedule 1 facilities are permitted by the Convention. States Parties may operate one single small-scale facility (SSSF) for the production of Schedule 1 chemicals for “research, medical, pharmaceutical or protective purposes”. They may also operate: (a) one protective purposes facility; (b) facilities producing Schedule 1 chemicals in quantities of between 100 g and 10 kg per year per facility for research, medical or pharmaceutical purposes; and (c) laboratories synthesising Schedule 1 chemicals in aggregate quantities of less than 100 g per year per facility for research, medical or pharmaceutical purposes (these facilities are regulated by the Convention).

FACILITY AGREEMENTS FOR SCHEDULE 2 PLANT SITES Schedule 2 plant sites are unlike Schedule 1 facilities in that the Convention imposes no restrictions on the amounts of Schedule 2 chemicals that can be produced (or otherwise handled) at plant sites. Although Schedule 2 plant sites are involved in the manufacture of a variety of products (from paint to fertiliser), they have one thing in common—they are industrial facilities. One difference in the nature of the facilities, however, has a great impact on discussions related to facility agreements. Plants producing Schedule 2 chemicals are frequently part of large industrial complexes (plant sites) that produce several different chemicals. Accordingly, there is frequently some discussion regarding which elements of the declared Schedule 2 plant and the plant site infrastructure are relevant enough to be considered part of the plant for the OPCW’s verification purposes. Moreover, there are situations in which the inspection team will need access to locations beyond the declared Schedule 2 plant. The Convention provides for such access in accordance with procedures to be established in the relevant facility agreement (or, if they cannot be established, with the managed access procedures set out in Part X(C) of the Verification Annex). Another related issue that has been the subject of much recent debate is the frequency of inspections at Schedule 2 plant sites. (See Fact Sheet 7 for more on verification measures at industrial chemical facilities.)

NEGOTIATIONS A wide range of issues may be addressed during the discussions on an individual facility agreement, but certain issues tend to arise in almost every case. Health and safety requirements, for example, are often the subject of extended consideration. In this area, States Parties are naturally anxious to ensure that inspection teams abide by the health and safety regulations applicable at the facility in question. The Secretariat also wishes to ensure that the members of an inspection team can carry out their activities in a manner that does not jeopardise their health and safety. On the other hand, the Secretariat must also ensure that the inspected State Party is not using health and safety concerns to prevent the inspection team carrying out their verification activities required in the inspection mandate. (See Fact Sheet 5 for more on inspections, including the role of the inspection mandate.)

Also commonly the subject of extensive discussion are arrangements related to the protection of confidential information. Facility management obviously wishes to protect confidential military or industrial information, but at the same time it is obliged to demonstrate compliance by granting the inspection team access to information to which it is entitled under the Convention. The balance between these rights is carefully negotiated in the discussions on the facility agreement. There is also normally some discussion on inspection equipment. Although the inspection team has the right to bring on site any item of approved OPCW equipment, it is naturally willing to use any equipment that can be provided by the facility, provided that it meets with OPCW standards and specifications. Other issues of concern are the location of sampling points at the facility and arrangements for the analysis of samples. Finally, facility agreements address the practical administrative arrangements relating to inspections, e.g. the type of transport that will be provided by the inspected State Party, and the working rooms and accommodation to be provided for inspection team members. Reaching agreement on these administrative arrangements greatly facilitates subsequent inspections.

BILATERAL AGREEMENTS ON THE PROCUREMENT OF ASSISTANCE In accordance with Article X, paragraph 7, each State Party undertakes to provide assistance through the OPCW for use in the event that the Organisation is called upon to assist another State Party that is attacked or threatened with chemical weapons (see Fact Sheet 8). To this end, each State Party may elect to take one of three measures, one of which is to conclude an agreement with the OPCW concerning the procurement, upon demand, of assistance. The Conference of the States Parties adopted a model for such agreements. The forms of assistance the State Party elects to provide (e.g. items of equipment, personnel, etc.) are listed in an annex to the agreement.