OPCW

1.1 The Chemical Weapons Convention is not self-executing. Each State Party’s international obligations under the Convention must be given direct internal legal effect. It is a general duty for each State Party to bring its domestic law into conformity with its obligations under international law, and Article VII of the Convention expressly requires States Parties to "prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction as recognised by international law from undertaking any activity prohibited to a State Party under [the] Convention, including enacting penal legislation with respect to such activity".

1.2 Depending upon its legal system and the scope of its already existing law, a State may have to undertake extensive advance preparation to have national implementing legislation in force at the time of the entry into force of the Convention for that State. Recognising this, the Technical Secretariat of the Preparatory Commission, and successively the Technical Secretariat of the OPCW, conducted or participated in workshops and regional seminars concerning this subject and cooperated with States Parties by providing assistance with legislation upon request. Model national implementing legislation was prepared in 1996 and has been widely distributed since then. A number of external publications have also been circulated.

1.3 Nevertheless, more than 18 months after entry into force of the Convention, out of 119 States Parties, only 40, i.e. only 33%, have informed the Technical Secretariat of the legislative and administrative measures they have taken to implement the Convention (as required by Article VII, paragraph 5). Some of the texts are still in translation and perhaps some of the submissions were not complete, but of those texts submitted and reviewed, only 26 appear to be comprehensive enough for the State Party to be able to implement the Convention effectively in its jurisdiction. In only 18 of those texts has the penal legislation been extended to nationals extraterritorially, as required by Article VII, subparagraph 1(c).

1.4 The purpose of this Note is to bring this matter to the attention of States Parties.

2.1 The provisions of Article VII, paragraphs 1 and 2, of the Convention are closely linked to the object and purpose of the Convention, which aim, "for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons" and to pursue "the complete and effective prohibition of the development, production, acquisition, stockpiling, retention, transfer and use of chemical weapons". Article VII provides as follows:

2.2 Inherent in these provisions is the concept that activities prohibited by the Convention at the international level will be proscribed and enforced by States Parties at the national level through their domestic processes. And, by extraterritorial extension of penal legislation to nationals and the obligation of States Parties to cooperate, the opportunity will at least be provided for international cooperation in pursuit of shared objectives.

3.1 Article VII, paragraph 1, requires States Parties, inter alia, to have enacted penal legislation applicable to natural or legal persons, as appropriate, with respect to prohibited activities. Penal legislation may involve either criminal or administrative sanctions.

3.2 The wording "activities prohibited under the Convention" relates first and foremost - but not exclusively - to the activities prohibited by Article I of the Convention. The model national implementation legislation prepared by the Secretariat of the Preparatory Commission for the OPCW suggested the following text for national legislation, part of which is an almost verbatim transcription of the text of Article I:

3.3 The Note transmitting the model legislation adds the following considerations concerning appropriate penalties: "... as these are the most basic violations of the very purpose of the Convention, penalties should be severe enough to deter possible violators. Legislation already drafted in this respect includes the penalty of life imprisonment for the most serious violations."

3.4 In addition to the Article I prohibitions, some States Parties deemed it necessary to sanction other activities related to implementation of the Convention in their penal law:

Inherent in all these are the Article VIII, paragraphs 46 and 47, prohibitions aimed at safeguarding the functioning of the international verification regime.

4.1 The legislative and administrative measures must extend to all natural and legal persons in the territory of the State Party and in other places under its jurisdiction as recognised by international law. In addition, each State Party has to extend its penal legislation to natural persons (as distinct from legal persons) having its nationality, when they commit such offences outside the territorial jurisdiction of that State Party. Although the rule that a state may prosecute its nationals for crimes committed anywhere in the world (active nationality principle) is universally accepted, the extent to which states assert jurisdiction over their nationals abroad varies. In some jurisdictions, it is only exercised in respect of a small number of specific crimes. In both cases, the extraterritorial application of its penal provisions to cover activities prohibited under the Convention will have to be explicitly provided for in its implementing legislation. Sweden has taken this a step further, by providing that, "A crime against the Convention will be sentenced by Swedish law and at a Swedish court even if the crime is committed abroad and irrespective of the perpetrator’s nationality", thus raising the offence, for Sweden, to the level of an international crime of universal jurisdiction.

4.2 The scope of the Convention and wide adherence to it will reinforce its emerging role as a codification and progressive development of customary international law. As universality of the Convention approaches, its norms become global norms which could be understood as declaratory of customary international law, which is binding even on States not party. Thus in this respect also, action by States Parties in extending their extraterritorial jurisdiction is consistent with international law.

5. Enforcement of the penal law

5.1 States Parties are required to "not permit in any place under its control any activity prohibited to a State Party under this Convention" (Article VII, subparagraph 1(b)), therefore they should enforce the measures taken to proscribe prohibited activity. This would certainly mean criminal prosecution of an alleged offender in cases of violation of criminal law, and may require international cooperation and legal assistance when more than one State Party can assert jurisdiction. Provision of legal assistance by another State Party often presupposes that the offence involved must be punishable under the law of the State which institutes the prosecution, as well as that of the State which has been requested to assist (double criminality).

5.2 Penal legislation which is consistent with the Convention with respect to prohibited activities will provide a more solid basis for the purposeful interaction of States Parties in the prosecution of such activities. Otherwise, the principles nullum crimen sine lege and nulla poena sine lege could stand in the way of legal assistance. The same could be the case if the penalties foreseen in the law of one State Party fall outside the range of the penalties in the law of the other States Parties involved.

6.1 Throughout 1998, significant steps were taken by the international community towards codifying and criminalising, at the international level, chemical attacks. In January, the International Convention for the Suppression of Terrorist Bombings, adopted by the United Nations General Assembly to enhance international cooperation between States in devising and adopting effective and practical measures for the prevention of acts of terrorism and for the prosecution and punishment of their perpetrators, was opened for signature. In July, the Rome Statute of the International Criminal Court was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court to ensure jurisdiction over the most serious crimes of concern to the international community as a whole, including as war crimes the employment of poison or poisoned weapons and the employment of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices. The adoption of these instruments is an indication of the continuing determination of the international community to ensure that the perpetrators of such acts shall not go unpunished.

6.2 In prosecuting offences concerning activities prohibited under the Convention, different States Parties may be involved and may have to cooperate and provide legal assistance:

6.4 The guarantee of due process

The strict observance of Article 14 of the International Covenant on Civil and Political Rights guarantees due process. Such a guarantee would normally be conditional for cooperation and legal assistance and would be sought from the outset. Other items to be resolved in connection with legal assistance are: the costs arising from such assistance, the confidentiality of information contained in the request and provided pursuant to a request, and a guarantee for witnesses against self-incrimination in accordance with Article 14, paragraph 3(g), of the International Covenant on Civil and Political Rights.

Assistance could be requested for the following:

6.7 Cooperation and legal assistance under the Convention

The Convention requires cooperation and "the appropriate form of legal assistance", but does not spell out the forms of legal assistance or the specific procedures by which such assistance will be given. The Rome Statute for an International Criminal Court (Part 9 on "International Cooperation and Judicial Assistance") gives an indication of what States could envisage to be necessary for the effective prosecution of an alleged offender.

6.8 The Technical Secretariat has compiled a survey of existing mutual legal assistance agreements, the Parties to them, and their scope (annex 3 to S/85/98). The principle of international cooperation has not yet been consolidated by the adoption of a universal multilateral treaty with uniform rules facilitating legal assistance. The development of an approach integrating the various modes of inter-State penal cooperation is beginning at the national and regional level, but the pace is slow. Existing bilateral and multilateral agreements are not comprehensive in scope and, in the case of multilateral agreements, reservations have been made to them. Mutual assistance in administrative matters is less developed than in civil or criminal matters. The Hague Conventions on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and on the Taking of Evidence Abroad in Civil or Commercial Matters are inapplicable in administrative matters. Furthermore, the Hague Convention on the Taking of Evidence only admits requests for judicial assistance emanating from a judicial authority for the purpose of judicial proceedings, and not from an administrative agency or for non-judicial administrative proceedings.

6.9 In the absence of a treaty obligation, assistance is granted ad hoc, on the basis of reciprocity, requested through diplomatic channels. The diplomatic channels may not meet the demand of expediency which is especially important in criminal investigations or proceedings and will not be in a position to compel testimony or the production of evidence. Furthermore, ad hoc assistance in criminal matters is furnished by some States only in cases where: (a) the offence motivating the request is an extraditable offence in the requested State; and/or (b) the offence motivating the request is punishable under both the law of the requesting State and the law of the requested State.

6.10 One solution developed by at least two States Parties is the inclusion of a provision in implementing legislation expressly authorising cooperation by domestic courts with foreign courts concerning acts prohibited by the Convention. Enactment of such a legislative authorisation may be particularly helpful in legal systems in which the discretion given to judges to operate outside areas of express statutory authorisation is limited. However, even in jurisdictions in which there is a tradition of wider judicial latitude, enactment of a legislative empowerment and framework for cooperation could prove to be useful.

6.11 Another eventual solution which might be considered would be the elaboration of a protocol, binding upon States Parties, enumerating the forms of legal assistance which a State Party will provide and detailing the procedures for provision of legal assistance under the Convention. This would be more difficult to draft but might be the most expedient option, certainly in the longer term. The utility of such a protocol would be primarily that it would define the parameters of assistance, and in particular that it would limit the possible excuses for refusing to give assistance. For example, there is usually a provision in mutual assistance treaties on their non-applicability to military offences and, sometimes, political offences. Such a provision would obviously be inappropriate in the context of prohibitions under the Convention.

7. Compilation prepared by the Secretariat

7.1 The Secretariat has prepared a survey of the texts of legislation, or the summaries of legislation, submitted by States Parties under Article VII, paragraph 5. Under the differing legal systems of States Parties, national implementing legislation has taken various forms: some States Parties have enacted a comprehensive act to implement the Convention, others have amended a series of existing laws, while others incorporated the text of the Convention in its entirety. The survey consists of a compilation of extracts, on various topics, of the legislation under which States Parties are implementing the Chemical Weapons Convention at the national level. The list of topics, which is not comprehensive, is as follows:

7.2 In most jurisdictions, it will be necessary to enact specific legislation to cover topics 1 to 3, and the compilation on these topics appears in annex 1 to S/85/98. For the remainder of the topics, contained in annex 2 to S/85/98, specific legislation may not be required if the State Party’s legal system guarantees the effect that specific legislation would achieve. Compliance can only be measured by effect and under customary international law (as codified by Article 27 of the 1969 Vienna Convention on the Law of Treaties), a State may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

8.1 The Chemical Weapons Convention requires its States Parties to adopt the necessary measures to implement their obligations under the Convention, including enacting penal legislation. The obligation for States Parties to cooperate and to afford appropriate legal assistance will be facilitated if national legislation is in force and is consistent with the Convention. States Parties are urged (a) to complete, where necessary, the legislative and administrative measures to implement the Convention in their jurisdictions; and (b) to inform the Technical Secretariat of such measures taken.

8.2 The Convention does not elaborate the cooperation and legal assistance which may be required of States Parties. As it stands now, States Parties will draw on existing international agreements on legal assistance and related domestic legislation as well as ad hoc arrangements to be reached between the States Parties concerned. This relates to the initiation of proceedings, the guarantee of due process, the specific types of assistance, and the extradition of alleged offenders.