	OPCW	_Secretariat
Office of the Legal Adviser
S/269/2001
16 August 2001
Original: ENGLISH

NATIONAL IMPLEMENTATION MEASURES: LEGISLATION QUESTIONNAIRE -

FURTHER ANALYSIS OF RESPONSES TO THE SURVEY OF NATIONAL MEASURES TO IMPLEMENT THE CHEMICAL WEAPONS CONVENTION

Contents

Executive Summary

1. Introduction

2. Form and status of legislation

2.1 – 2.5 Form of national legislation

2.6 – 2.8 Status of legislation

3. Application of legislation, including extraterritorial application

4. Penalties

5. Prohibitions on transfers of Schedule 1 and Schedule 2 chemicals

6. Nature of regulatory provisions for scheduled chemicals and DOCs

6.1 – 6.8 Schedule 1 chemicals

6.9 – 6.19 Schedule 2 chemicals

6.20 – 6.27 Schedule 3 chemicals

6.28 – 6.29 Unscheduled discrete organic chemicals (“DOCs”)

7. Miscellaneous questions

8. Conclusions

Annex: Tables 1 – 8C

Executive Summary

As of 15 August 2001, there are 143 States Parties to the Chemical Weapons Convention. Information received from States Parties in responses to the first legislation questionnaire issued by the Secretariat, as well as notifications received in accordance with Article VII, paragraph 5, of the Convention, have resulted, in terms of implementation of the Convention, in a clearer picture of the legislative and administrative situation applicable in about half of the current membership of the OPCW. This document presents the positive steps being taken by States Parties, and discusses the issues being faced and possible solutions.

This detailed analysis of the responses received to the legislation questionnaire from 57, or 40%, of all States Parties, indicates that a range of legal methods and regulatory instruments are being used in relation to scheduled and discrete organic chemicals. Although the extent to which the Convention’s obligations are being implemented remains uneven, including amongst States Parties which have a significant chemical industry, the various measures being adopted serve the Convention’s non‑proliferation objectives, and the measures themselves are not an impediment to the effective implementation of the Convention. Better coordination and harmonisation is desirable. Responses are sought from the remaining States Parties.

A number of conclusions have been drawn from the responses to the legislation questionnaire. These are set out in the final section of this analysis. Importantly, most respondents have legislation in place to implement the Convention, while others are in the process of drafting legislation, or have monist legal systems. Most States Parties responding to the questionnaire also reported that they have prohibitions in place on transfers of Schedule 1 chemicals (including re-transfers) and Schedule 2 chemicals, as currently required under the Convention. Between two-thirds and three-quarters of States Parties with declared/inspectable facilities, but only, on average, between one‑third and one-half of all States Parties involved in declared import/export activities for scheduled chemicals, responded to the questionnaire, and reported having relevant controls in place. It should be noted that the Convention requires all States Parties to put the necessary measures into place to regulate any relevant activities, including any eventual activities.

The following global figures should be borne in mind during considerations of the detailed findings. States Parties responding to the questionnaire included about three‑quarters of those States Parties which have declared facilities involving Schedule 1 chemicals (16 out of 21), Schedule 2 chemicals (23 out of 29), Schedule 3 chemicals (26 out of 33), and DOCs (38 out of 51). All, or almost all, of these States Parties also reported having controls in place in relation to most aspects of production, use, and transfers of scheduled chemicals (although fewer did so in relation to certain aspects, such as salts, mixtures, captive use, and saxitoxin), and production of DOCs. However, in relation to States Parties involved in declared import/export activities for scheduled chemicals, controls were less frequently reported: generally between five and seven out of 10 States Parties in relation to Schedule 1 chemicals; between about 14 and 28 out of 50 States Parties in relation to Schedule 2 chemicals; and between about 24 and 38 out of 105 States Parties in relation to Schedule 3 chemicals.

1. Introduction

1.1 In order to assist States Parties with their efforts to undertake national implementation measures, the Secretariat, seeking to act upon the decision of the Conference of the States Parties at its Fifth Session (C-V/DEC.20, dated 19 May 2000), and responding to requests for assistance received from States Parties in the process of drafting legislation, issued a “legislation questionnaire” to the 135 States Parties at that time (S/194/2000, dated 8 June 2000). A major focus of the questionnaire was concerned with the methods of regulating scheduled chemicals and precursors, both to facilitate reporting under the Convention, and to improve the control of transfers of these chemicals in accordance with the Convention.

1.2 As of 15 August 2001, a total of 57, or 40%, of all States Parties had submitted responses to the questionnaire. Following further requests from the Secretariat, a number of States Parties also provided clarifications of specific responses that they had previously submitted. As of the same date, a total of 55 States Parties, or 38%, had provided information under Article VII, paragraph 5, of the Convention, in relation to the legislative and administrative measures they had taken to implement the Convention. Details of these measures, designed to implement the Convention in whole or in part, are contained in the Survey of National Implementing Legislation (S/259/2001, dated 16 May 2001). Some additional States Parties had submitted legislation establishing their National Authorities, had submitted drafts of national implementing legislation to the Secretariat for comment, and/or had informed the Secretariat that formal legal procedures would be completed in the near future.

1.3 Responses to the legislation questionnaire were received from 43 of the 55 States Parties that had previously provided information under Article VII, paragraph 5, and also from an additional 14 States Parties. The questionnaire responses provided the first concrete details of the legislative and administrative situation in those 14 States Parties.

1.4 Thus, although the questionnaire responses are not a substitute for compliance by each State Party with its obligations under Article VII, paragraph 5, and although provision by the State Party of information under Article VII, paragraph 5, does not mean that the State Party has fully complied with its international obligations (which include adopting the necessary measures to implement its obligations under the Convention, in accordance with its constitutional processes), a picture has now developed about the extent of legislative and administrative implementation of the Convention in at least 69 States Parties. This is equivalent to nearly half of all States Parties. Details are also known of some measures applicable to States Parties which are European Union members, but which have not separately provided information.

1.5 The 57 States Parties which had responded to the questionnaire as of 15 August 2001 (with the additional 14 States Parties in bold) were: Algeria, Argentina, Australia, Austria, Azerbaijan, Bangladesh, Belarus, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Chile, China, Cook Islands, Costa Rica, Cuba, Czech Republic, Denmark, Ethiopia, Finland, Georgia, Germany, Hungary, India, Italy, Japan, Kenya, Latvia, Lithuania, Malta, Mexico, Monaco, Namibia, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Peru, Philippines, Republic of Korea, Romania, Saudi Arabia, Slovak Republic, Slovenia, South Africa, Spain, Sweden, Switzerland, Togo, Turkey, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, and Zimbabwe. The other States Parties which have provided information under Article VII, paragraph 5, of the Convention, but which did not respond to the questionnaire as of 15 August 2001, were: Belgium, Croatia, France, Iceland, Ireland, Luxembourg, Morocco, New Zealand, Russian Federation, San Marino, Singapore, and Uzbekistan.

1.6 A preliminary analysis of the responses to the legislation questionnaire was issued in March 2001 (S/249/2001, dated 22 March 2001). A draft intermediate analysis, based on the responses submitted by 14 March 2001, was presented to the Third Annual Meeting of National Authorities, held at the OPCW headquarters in The Hague, the Netherlands, from 11-13 May 2001. A request was made at that meeting for a more detailed analysis to be issued, which incorporated further substantive aspects and observations, in addition to the factual and statistical work presented in the draft intermediate analysis.

1.7 This further analysis includes an annex containing modified and updated tables from the draft intermediate analysis. The following aspects of the responses to the questionnaire are discussed here, with the main findings encompassing:

(a) the form and status of legislation;

(b) the application of legislation, including extraterritorial application;

(d) prohibitions on transfers of scheduled chemicals (Schedules 1 and 2);

(e) regulatory provisions for:

- Schedule 1 chemicals, including salts, mixtures, transfers, saxitoxin, etc;

- Schedule 2 chemicals, including production/processing/consumption, salts, mixtures, captive use, transfers;

- Schedule 3 chemicals, including production, salts, mixtures, transfers, end-user certificates;

- obtaining information on production of DOCs; and

(f) miscellaneous/additional issues.

1.8 The figures in Tables 1-5 inclusive are expressed as raw data, and as a percentage of the total number of responding States Parties (57 to date). For example, if 38 of the 57 responding States Parties answered a question in a certain way, this corresponds to two-thirds, or 67%, of respondents. The figures in Tables 6A-8C inclusive are expressed as raw data only, indicating the number of States Parties responding in a particular way.

2. Form and status of legislation

Form of national legislation – Table 1

2.1 There was an almost equal division between responding States Parties with a monist legal system (i.e. a legal system in which international and national law form part of a single legal order, and the provisions of the Convention apply directly as national law), and those with a dualist legal system (i.e. a legal system in which international law and national law operate as distinct, separate regimes, and national legislation is required to give effect to the Convention internally). It appears that internal laws and regulations have been put into place in some monist legal systems to implement the Convention in a more detailed manner, but that the Convention’s norms and provisions may still be invoked at the national level, and so separate national laws may not be necessary in certain respects.

2.2 In relation to measures regulating Schedule 1, 2, and 3 chemicals, and DOCs, about half of the respondents were applying a combination of statute(s), regulations, and administrative/executive orders (just over one-third for DOCs). Nearly half had adopted what is termed a “single act” approach, and one-quarter reported using an “integrated” approach (fewer for DOCs). Smaller numbers of States Parties reported using only regulations and/or administrative/executive orders. Several respondents specified other legislation which was being adopted (e.g, legislation dealing with customs, import/export, strategic goods, penalties, etc).

2.3 Nearly one-fifth of respondents did not reply to this question. However, this group was made up largely of those States Parties with monist legal systems, which allow for direct application to be given to the Convention internally, often without additional regulatory measures being necessary.

2.4 There was some overlap between the different categories of approaches and responses. The “single act” approach generally implies a principal, CWC‑specific, implementing act, but may also involve consequential amendments to other legislation. The “integrated” approach involves the implementation of the CWC, either in conjunction with other international treaty obligations, or in conjunction with legislation regulating a different, but related, subject matter. However, some respondents may have understood “integrated” to mean a package of several pieces of legislation essentially dealing with a single subject area. The main conclusion is that CWC‑specific laws constitute the approach of the majority of States Parties, often in conjunction with other measures, and integrated laws are used by a minority of States Parties, even though an appreciable group of States Parties prefer that approach. The integrated approach was slightly less common for regulating DOCs.

2.5 A smaller group of respondents replied to a number of miscellaneous questions in the questionnaire relating to integrated legislation, as follows:

What reasons led the government to consider following an integrated approach?

Fourteen States Parties responded to this question. The predominant reason for following the integrated approach was that most States Parties already had existing regulations in place to serve comparable regimes, such as arms, explosives, and nuclear weapons. Integration could also assist the National Authority to create a system of controls (internal/international, preparation of declarations etc).

With what other legislation has the CWC implementing legislation been integrated?

The integration was either carried out under a general umbrella organisation or law (e.g. a national commission for sensitive exports, a foreign exchange and foreign trade law, a law on exports/imports, a law on chemicals), or a new regulation was created as part of an existing regulatory framework, such as a military equipment act, a strategic products act, a business act, etc.

How did the process of integration evolve and who has been involved?

Responses included the following: the establishment of an inter-departmental preparatory committee, the rationalisation of all chemical activities, the modification of regulations, approaches which constituted the “same process as with normal laws”, the “integration process continues”, and the involvement of government legal experts.

Has the integrated approach been beneficial? If so, for whom?

Respondents described the advantages of integrated legislation as including the following: more effective controls, better coordination, lighter administrative burdens for government and industry, laws which stood the test of time without amendment, the maintenance of transparency of existing export control legislation, and the coverage of all weapons of mass destruction, or of military equipment and dual-use products.

What other chemical regulatory regimes are in place nationally?

Examples of other chemical regulatory systems in place included regulatory regimes relating to the following: examination and regulation of manufacture of chemical substances; chemical accidents; health and environment; industrial waste; the export of chemicals; air pollution; strategic imports/exports; narcotics; the Basel/Rotterdam Conventions; and European Union regimes on dangerous chemicals.

Status of legislation – Table 2

2.6 More than three-quarters of responding States Parties (75-81%) stated that they had legislation in force regulating scheduled chemicals, and only slightly fewer (72%) had legislation in force to regulate DOCs. About half of the remaining respondents had monist legal systems, and thus did not require separate legislation. For most other respondents, legislation was in the process of being drafted, or was being considered by their legislative bodies.

2.7 About one-third of respondents had put relevant legislation into place prior to entry into force of the Convention for the State Party in question, although this figure fell to less than one-fifth of respondents in the case of DOCs. About one-third of respondents were also in the process of drafting new or additional legislation/amendments in relation to scheduled chemicals and DOCs.

2.8 A range of answers was provided to miscellaneous questions relating to incomplete or absent legislation, regarding factors which could act as the main impediments to the enactment of implementing legislation. The time required to draft legislation and obtain parliamentary approval was a major factor, as was the complexity of the process, and competing legal demands. Factors which impeded progress in this area included:

(a) the fact that the process of adopting legislation was time-consuming, and was subject to competing political priorities while approval was being obtained (e.g. a project establishing administrative and legal sanctions was being considered by the national Congress); in addition, any new legislation which might have an impact on products required consultations with various stake holders (chemical and pharmaceutical industries, government agencies, military organisations), resulting in a lengthy process;

(b) the additional strain on an already overburdened public sector, which was thus unable to implement measures necessary for the implementation of the CWC (e.g. the creation of a register of businesses specifically for the CWC; the incorporation of customs controls of CWC items; the procedures to receive and analyse proposals from departments of the national administration);

(d) delays in amending the penal code, or in drafting the administrative measures which needed to be put into place;

(e) the fact that the mechanism to collect information for declarations and control of transfers had not yet been formalised by law;

(f) that there was no National Authority to undertake the task;

(g) a lack of documentation in the industrial sector;

(h) the need to train personnel, and language problems (for example, programmes were only available in English); and

(i) inter-institutional coordination difficulties, interference or conflict with existing national legislation, or with other international conventions.

3. Application of legislation, including extraterritorial application[1] – Table 3

3.1 Responses indicated that “legislation being applicable extra-territorially” applied to citizens and legal entities abroad, and usually to ships and aircraft that were registered in the State Party in question.

3.2 About one-third of respondents indicated that they were applying their legislation extraterritorially in relation to scheduled chemicals; about one-quarter reported that they were not, and the remainder did not reply to this question. This raises concerns as to whether the nationals of those States Parties not giving extraterritorial application might be engaging in activities prohibited under the Convention in other parts of the world, even if the import and export of scheduled chemicals is being regulated by the States Parties concerned. In such circumstances, there would be no means of prosecuting Convention violations committed by their nationals in relation to those activities.

3.3 Three States Parties indicated that they had applied legislation to external territories under their jurisdiction, and a specification of these places was given.

4. Penalties – Table 4

4.1 States Parties did not seem to use a weighting factor to distinguish between offences relating to the different scheduled chemicals under the Convention. They did, however, apply a more lenient approach in relation to DOCs.

4.2 For many respondents, the typical range of criminal penalties was comparable to those applicable to grand theft, rape, murder, and other serious criminal offences. A maximum sentence of 5-15 years was common, with a median maximum term of 10 years’ imprisonment. Fines were an alternative to imprisonment in several cases, and these also tended to reflect the seriousness of the offence. Administrative fines tended to be in a lower range.

4.3 Overall, the range of penalties varied considerably. Some respondents provided for shorter prison terms, while some reported a maximum of life imprisonment. Capital punishment was mentioned by one respondent (applicable in cases of the preparation, use, or threat of use, of chemical weapons). Other penalties reported by individual States Parties included confiscation of property, closure of offending firms, cancellation of licences, suspension of export activities, and warnings.

4.4 Fines ranged from a minimum/nominal amount (e.g. US $100), to a maximum of the equivalent of, in one case, about US $3 million and, in another case, potentially a greater amount, equivalent to five times the price of the relevant exported item. Several respondents did not specify the amount of fines, or indicated that the fine would depend on the case, or that no case had yet gone to court. More commonly reported maximum fines/penalties specified in legislation were in the order of US $2,500 to US $5,000 (at the lower end); US $10,000 to US $50,000 (in the mid-range); and US $250,000 to US $500,000 (at the upper end).

5. Prohibitions on transfers of Schedule 1 and 2 chemicals – Table 5

5.1 For Schedules 1 and 2 chemicals, the question was raised as to whether a State Party in its regulations explicitly prohibited transfers and, (for Schedule 1 chemicals) re‑transfers of these chemicals to or from States not party to the Convention. Approximately three-quarters of respondents indicated that they explicitly prohibited such transfers. Some of these were monist systems, and several others, including some States Parties with monist systems, reported that, although this was not explicitly regulated, transfers would still be denied by means of (administrative) policy. One State Party reported that it only prohibits transfers of Schedule 1 chemicals to States not Party, not from States not Party. About one-fifth of respondents did not yet have legislation in place (or were drafting it), were not giving effect to the necessary prohibitions, or did not reply to this question.

6. Nature of regulatory provisions for scheduled chemicals and DOCs

Schedule 1 chemicals – Tables 6A-6E

6.1 Competent authority monitoring Schedule 1 activities

The responses indicated that the competent authority was usually the National Authority alone (in about 50% of the cases), or was (in about 25% of cases) the National Authority in conjunction with one or more other ministries or departments, such as the Ministry of Defence, the Ministry of Trade and Industry, the Ministry of Finance, the Customs Department, the Ministry of Regional Municipalities and Environment, or the Departments of Commerce, State or Defence, or the Export Office. In cases where the National Authority is not the competent authority, the foreign trade/sensitive exports office is often the competent authority alone.

6.2 Control/monitoring of the 1 tonne aggregate amount of Schedule 1 chemicals referred to in paragraph 2, Part VI of the Verification Annex – Table 6A

Thirty-nine States Parties (68% of respondents) reported having a system in place, including about three-quarters of all States Parties which have declared Schedule 1 facilities, or which are involved in declared import/export activities (one-quarter had not replied to the questionnaire by 15 August 2001), and details were provided of the method by which control/monitoring is accomplished. Where a system was in place to control/monitor, it usually took the form of declarations, permits, or licenses, or some combination of these (see Table 6A). The use of the “hardest tools” (inspections/verifications of the declared amounts by the governmental authority) was confirmed in seven States Parties.

6.3 Explicit coverage of Schedule 1 chemicals contained in mixtures

The responses were: Yes – 40% (23 States Parties); No – 28%; no reply – 32%. However, one State Party in the “no” category had a regulation that excluded <0.5% as an unintended by‑product or impurity, and several other respondents in the “no” and “no reply” categories were in the process of drafting legislation. This would still leave nearly half of respondents without explicit coverage of such mixtures in national regulations, even though several are monist systems. This includes about half of the States Parties with declared Schedule 1 facilities, and involved in declared transfers of Schedule 1 chemicals.

6.4 Identification and control of producers, and duration of licences etc. – Table 6B

About two-thirds of the respondents (38 States Parties) have a system in place to identify producers of Schedule 1 chemicals (see Table 6B), using different tools such as declarations from industry, surveys, questionnaires, industry association information, annual requests, mandatory reporting, licenses, permits, and other approvals. In 25 of these 38 States Parties, including about three-quarters of all States Parties with declared Schedule 1 facilities (one-quarter had not replied to the questionnaire by 15 August 2001), the (potential) Schedule 1 manufacturer has to undergo some sort of approval procedure, such as obtaining permits or licenses, or going through a registration process.

Although one-third of respondents were categorised as “no reply”, the majority of these indicated either that no legislation was in place yet, or that no production of Schedule 1 chemicals takes place in the State Party in question. However, this does not absolve them from the obligation to put into place whatever measures may be necessary to prohibit the relevant activities, and to control any eventual Schedule 1 activity in accordance with the Convention.

Thirty-six States Parties also reported having some sort of active, ongoing control over producers of Schedule 1 chemicals, including 24 States Parties which use a licensing procedure. Licence duration ranged from 4 months, to an unlimited period of time, until the licence was withdrawn. A typical range was 1 to 3 years. Eighteen States Parties use another method, such as surveys or questionnaires or registration, to control the production of Schedule 1 chemicals, either alone or in conjunction with licences – nine States parties also conduct on-site inspections, and three States Parties use a system of permits.

6.5 Regulation of salts of Schedule 1 chemicals

Twenty-one respondents (37%) have regulations in place to cover this aspect. These include less than half of the States Parties which have declared Schedule 1 facilities, or which are involved in declared import/export activities for Schedule 1 chemicals. In all cases, only scheduled salts are regulated, or it was not clear in the responses as to whether regulation is limited in this way.[2] The remaining respondents either have no regulation in place (11%), or they did not reply to this question (52%). Five States Parties elaborated that no legislation was in place yet.

6.6 Identification/monitoring of users of Schedule 1 chemicals – Tables 6C and 6D

A total of 40 respondents (70%) have a system in place to identify users of Schedule 1 chemicals (see Table 6C), and 37 (65%) have a system to monitor such users (see Table 6D). These include about three-quarters of the States Parties with declared Schedule 1 facilities, and about two-thirds of the States Parties involved in declared transfers of Schedule 1 chemicals. Nearly half of respondents use permit/registration, licensing, or inspection (“hard tools”) for monitoring purposes. Eight States Parties in the “no reply” group elaborated that legislation was being drafted, or was not yet in place, or that there was no use of Schedule 1 chemicals (although this does not absolve them of the responsibility to put a system into place).

6.7 Control of Schedule 1 transfers, identification of importers/exporters – Table 6E

Forty-two States Parties (74% of respondents) use licensing or other control methods to regulate transfers of Schedule 1 chemicals. These include about three-quarters of the States Parties with declared Schedule 1 facilities, and about two-thirds of the States Parties involved in declared transfers of Schedule 1 chemicals. Thirty-three States Parties (58%) indicated that they have a licensing system in place for imports and/or exports of transfers of Schedule 1 chemicals. Twenty-five States Parties have licensing systems for both imports and exports, two for imports only, and six for exports only. One State Party reporting no use of Schedule 1 chemicals indicated that an import licence would only be issued if the exporting country required it. Of 21 States Parties specifying other control methods, nine mentioned verification/checking by customs, and three use declarations. All but nine respondents thought they were being asked whether an additional system was in place, one which supplemented the use of licences and/or permits. Of the 32 States Parties which elaborated on the methods being used to identify importers/exporters (see Table 6E), the most common method being used involves approval/application procedures for licenses/permits.

Authorities issuing permits or licenses included: the National Authority (33%), the Ministry of Commerce or Trade (23%), the Ministry of Foreign Trade (18%), the Ministry of Foreign Affairs (5%), the Ministry of Defence (5%), and others (16%). States Parties issuing permits almost invariably have a system in place based on one permit for each transaction. This was consistent with the requirement to notify the OPCW of such transfers. Three States Parties also allowed multiple transactions under the same permit. Several States Parties also indicated the period of validity of the licences, the most commonly reported period being six months.

6.8 Separate regulation of saxitoxin

Half of the responding States Parties, when asked whether separate regulation of saxitoxin took place, replied “No”, and 40% did not reply. Only six States Parties (11%) indicated that they had, or soon would have, a separate regulation for saxitoxin, and one State Party in the “no” group indicated that this was covered under customs regulations; two States Parties indicated that they have a regulation that covers both saxitoxin and ricin.

Schedule 2 chemicals – Tables 7A-7C

6.9 Identification of producers/processors/consumers of Schedule 2 chemicals

Forty-three States Parties (75% of respondents) claim to have a system in place to identify the producers/processors/consumers of Schedule 2 chemicals (compare the 38 States Parties for Schedule 1 chemicals in subparagraph 6.4 above), and 21 of these States Parties apply the same identification system for Schedule 1 and Schedule 2 chemicals, while 13 have a less strict system in place for Schedule 2 chemicals (i.e. there is no requirement for licences, permits, or registrations). Three States Parties have a more stringent system in place for Schedule 2 chemicals. Fourteen States Parties (25% of respondents) fall into the “no reply” category, of which seven indicated that there was no legislation in place at the time, or that legislation was in the process of being drafted, or that no such activity relating to Schedule 2 chemicals takes place in the State Party in question (but, as in relation to Schedule 1 chemicals, the Convention requires any necessary measures to be put into place to regulate any eventual activities).

6.10 Control of Schedule 2 chemicals, by licensing, or by another method

Sixteen States Parties reported using a license/permit/registration system to control production/processing/consuming of Schedule 2 chemicals, and 18 States Parties reported using another method of control, including five which use declarations, eight which use inspections, and one which uses a combination of these two methods. Details of these controls were provided by about two-thirds of all States Parties with declared Schedule 2 facilities, and by just over one-third of the 50 States Parties involved in declared import/export activities for Schedule 2 chemicals.

6.11 Regulation of mixtures containing Schedule 2 chemicals – Table 7A

In relation to whether States Parties regulated such mixtures, the responses were: Yes – 46% (26 States Parties); No – 18% (of which 4% indicated that legislation/amendment was being drafted); and no reply – 36%. Positive responses were received from about two-thirds of the States Parties which have declared Schedule 2 facilities, but from less than one-half of the States Parties involved in declared imports/exports of Schedule 2 chemicals.

Regulations were reported as being in place in 18 States Parties specifying thresholds (see Table 7A), and in 23 States Parties specifying concentrations. In relation to concentrations, the following responses emerged: nine of the responding States Parties have set a level of 30%; two have set 20%; seven have set 10%; and four have applied a differentiated approach, that is, a difference has been made between Schedule 2A chemicals (0.5%, 1%, 1%, and 10 %) and Schedule 2B chemicals (15%, 10% or 30%, 30%, and 30 %).

6.12 Recognition of captive use for production

Thirty-two percent of the respondents (18 States Parties) confirmed that they do recognise captive use. These include about half of the States Parties with declared Schedule 2 facilities, but only about one-third of the States Parties involved in declared import/export activities for Schedule 2 chemicals. Ten percent gave a “no” answer, and 60 % did not reply.

6.13 Regulating production/processing/consumption of salts of Schedule 2 chemicals

The responses were: Yes – 32% (18 States Parties); No – 25%; no reply – 43%. In the “yes” category, which includes nearly half of the States Parties which have declared Schedule 2 facilities, but only about one-quarter of the States Parties involved in declared import/export activities for Schedule 2 chemicals, most respondents indicated that they regulate the production/processing/consumption of scheduled salts only.[3] The responses to this question were similar to those which had been given in relation to salts of Schedule 1 chemicals (see paragraph 6.5, above).

6.14 Competent authority monitoring transfers

In 37% of the cases, the National Authority monitors transfers, and in 28% of cases, the National Authority plus some other institution are involved (e.g. the Ministries of Defence, of Trade and Industry, of Finance/Customs Department, of Regional Municipalities and Environment, or the Departments of Commerce, State or Defence, or the Export Office). Nineteen percent of respondents specified other authorities, which usually dealt with foreign trade/sensitive export controls.

6.15 Requirement of exporters, importers, and/or traders to report transfers

Thirty-seven States Parties (65% of the respondents) require reporting of transfers by exporters, importers, and/or traders. These include about three-quarters of States Parties with declared Schedule 2 facilities and just over one-half of the States Parties involved in declared import/exports of Schedule 2 chemicals. Thirty-four States Parties indicated that exporters have to report their transfers to the competent authority, 34 responded that importers must report their transfers, and 27 responded that traders must report such transfers. Two States Parties have a reporting obligation for importers only, two for exporters only, and one for traders only. Twenty-five States Parties oblige exporters, importers, and traders to report their transfers. Twenty States Parties did not respond to this question, of which seven mentioned that legislation was being drafted.

6.16 Methods of controlling transfers

Forty States Parties (70% of the respondents) use licensing or another method to control transfers of Schedule 2 chemicals. These include about three-quarters of States Parties with declared Schedule 2 facilities, and just over one-half of the States Parties involved in declared imports/exports of Schedule 2 chemicals. Of the 40 respondents, the results were as follows: 53% (30 States Parties) reported having a licensing system in place to control exports, and 39% (22 States Parties) reported controlling imports through a licensing system. Eighteen States Parties reported using other controls, usually understood to be in addition to the licensing systems. Nine of these States Parties mentioned some sort of verification or check at customs level, and six use declarations. About one-third of respondents did not reply to this question, but about half of those specified that legislation was being drafted, was being examined, or was not yet in place.

The National Authority was the main authority issuing the permit or licence for imports (in about half the reported cases), and the National Authority issued them for exports in about a third of the reported cases. The Ministry of Defence, the Strategic Goods Department, or the Ministries of Economy, Commerce, Trade, or Foreign Affairs were the main issuing authorities for imports in only about 20% of respondents, but this increased to 40% in connection with exports. As was the case for transfers of Schedule 1 chemicals, most (23 out of 31) States Parties reported issuing a single permit per transaction for Schedule 2 transfers. However, eight States Parties also use a multiple permit system, which is thus more frequently used than in the case of Schedule 1 transfers (see subparagraph 6.7 above).

One State Party reported that it controls transfers of Schedules 2 and 3 chemicals through licencing “for exports of Schedule 2 and 3 chemicals that are controlled by the Australia Group to all destinations, except Australia Group member countries.” No licence is required for exports of Schedule 2 and 3 chemicals which are not controlled by the Australia Group (e.g., the Schedule 3 chemicals phosgene and hydrogen cyanide), except when destined for a specific group of countries – including three States Parties to the CWC. End user certificates are, however, required for exports of Schedule 3 chemicals to States not Party, whether or not a licence is required. Further clarification on these reported controls is being sought from the State Party concerned.

6.17 Identification of importers/exporters – Table 7B

Forty States Parties (70% of respondents) reported on how importers and exporters are identified (see Table 7B). These include about three-quarters of States Parties with declared Schedule 2 facilities and just over one-half of the States Parties involved in declared imports/exports of Schedule 2 chemicals. Respondents use a similar system for importers and for exporters, except for four States Parties which use a licensing system for this purpose for exporters, but not for importers (e.g. they use customs documentation).

If the replies to this question are compared to those in relation to a similar question for Schedule 1 chemicals (see Table 6E), it appears that States Parties have a less stringent system in place for identifying Schedule 2 importers and exporters. That is, States Parties rely more often on (required or voluntary) declarations in the case of Schedule 2 chemicals.

6.18 Regulation of transfers of mixtures containing a Schedule 2 chemical – Table 7C

Forty-seven percent of respondents (27 States Parties) reported that they regulate transfers of mixtures containing a Schedule 2 chemical. Positive responses were received from about two-thirds of the States Parties which have declared Schedule 2 facilities, and about one-half of the States Parties involved in declared imports/exports of Schedule 2 chemicals. Of the 30 respondents that replied “No” (9 States Parties), or that did not reply specifically to this question (21 States Parties), seven indicated that legislation was being drafted. Of the 27 States Parties with a regulation in place, 15 specified a threshold, and 22 States Parties specified a minimum concentration limit (see Table 7C).

6.19 Regulation of transfers of salts of Schedule 2 chemicals

Thirty-three percent of respondents (19 States Parties), including more than one-third of the States Parties which have declared Schedule 2 facilities, but only about one‑quarter of the States Parties involved in declared import/export activities for Schedule 2 chemicals, indicated that transfers of salts of Schedule 2 chemicals are regulated or, in two cases, that amendments would shortly be made. Twenty-five percent indicated that no regulation of such transfers had been made; and 42% did not reply to this question. About half of the States Parties with a system in place specified that only scheduled salts are being regulated.[4]

Schedule 3 chemicals – Tables 8A-8C

6.20 Identification of producers of Schedule 3 chemicals

Seventy-two percent of respondents (41 States Parties) have a system in place to identify the producers of Schedule 3 chemicals. As for Schedule 2 chemicals, more than three-quarters of States Parties with declared Schedule 3 facilities (25 out of 33) responded to the questionnaire, and all but one of these provided relevant details (one‑quarter had not responded by 15 August 2001). However, only about one-third of 105 States Parties involved in import/export activities for Schedule 3 chemicals reported having controls in place.

Identification measures include declarations, questionnaires, surveys, mandatory registration/reporting, and licenses. Of the 14 States Parties with a licensing system in place to control production, seven specified the duration of licences, which included one year (four States Parties), two, three, and five years (one State Party in each case). In nine States Parties, the system is less stringent than for Schedule 1 production, in the sense that no licenses or permits are required. In one State Party, the system is more stringent, but only for HCN and COCl2 and their derivatives. Of the 16 respondents with no system yet in place, five indicated that legislation is being drafted, and three stated that there is no production of Schedule 3 chemicals (controls may be exercised through the licensing of imports).

6.21 Regulation of mixtures containing Schedule 3 chemicals – Table 8A

Twenty-five States Parties (44% of respondents) reported that the production of mixtures containing Schedule 3 chemicals is being regulated, a result in line with what has been found for Schedule 2 chemicals (see paragraph 6.11, above). Positive responses were received from about two-thirds of the States Parties which have declared Schedule 3 facilities, but from less than one-quarter of the States Parties involved in declared imports/exports of Schedule 3 chemicals.

Sixteen States Parties have a threshold in place, and 24 States Parties have set a minimum concentration limit (see Table 8A). Of the other respondents, seven indicated that either there was no legislation in place, or that it was being drafted, and two stated that there was no production of such mixtures in the State Party in question.

6.22 Competent authority monitoring transfers

In 40% of reported cases, the competent monitoring authority was the National Authority, and in 21% of cases, monitoring takes place by the National Authority, together with some other institution, such as the Ministry of Trade and Industry, the Department of Defence, the Export Controls Division, the Directorate of Customs, etc. Eleven States Parties (19% of respondents) specified other competent authorities, usually those dealing with foreign trade/sensitive export controls.

6.23 Methods of controlling transfers

Twenty-nine States Parties (51% of respondents) report having a licensing and/or permit system in place; 11 require licences for both exports and imports, and eight for exports only. One State Party also licenses internal transfers. As was the case with the regulation of Schedule 1 and Schedule 2 transfers, most (26 States Parties) stated that they issue single permits. Eleven States Parties responded that they also issue multiple permits. Twenty‑four States Parties indicated that they use other control methods, in some cases in conjunction with the licence and permit systems, including customs documentation (nine respondents), declarations (six respondents), and inspections (two respondents). Controls were reported by about two-thirds of the States Parties which have declared Schedule 3 facilities, and by about one-quarter of the States Parties involved in declared import/export activities for Schedule 3 chemicals.

The main governmental issuing authorities for licences included: the Ministry of Foreign Affairs, the Committee on Control of Strategic Goods/Sensitive Exports, the Ministries of Economy, Trade, Industry, and Labour, and the National Authorities, although National Authorities were not as predominant here as in other responses. However, National Authorities were often the responsible authority for permits (in 40% of the responses to this question), as were the Export Control Office (14%), and the Ministries of Foreign Affairs and Economy (10% each).

6.24 Identification of exporters of Schedule 3 chemicals – Table 8B

Forty States Parties replied to this question (see Table 8B). Exporters are more likely to be identified through “hard tools” – such as the requirement for export licences, and inspections in a few cases – rather than by other measures, such as declarations or surveys alone.

6.25 Regulation of transfers of mixtures containing a Schedule 3 chemical – Table 8C

Nearly half of the respondents (28 States Parties) indicated that they regulate transfers of mixtures containing a Schedule 3 chemical. These include less than two-thirds of the States Parties which have declared Schedule 3 facilities, and only about one‑quarter of the States Parties involved in declared imports/exports of Schedule 3 chemicals. Of the 29 States Parties which do not, or which did not reply, nine indicated that no legislation was in place, or that legislation/amendments were being drafted, and one reported that no transfer of mixtures involving Schedule 3 chemicals occurs. Of the 28 States Parties with a regulation in place, 17 have specified a threshold, and 23 have specified a concentration limit (see Table 8C). About half of these States Parties appear to have opted for a threshold of 100 kg or less, and for a concentration limit of 30%.

6.26 Regulation of transfers of salts of Schedule 3 chemicals

The responses were: Yes – 28 (16 States Parties); No – 27%; no reply – 44%. Of the 16 States Parties claiming to regulate transfers of such salts, five specified that only scheduled salts are regulated (although Schedule 3 of the Annex on Chemicals does not mention salts).[5]

6.27 Enforcement of the requirement for end-user certificates for Schedule 3 transfers

Thirty-seven States Parties (65% of respondents) reported that they are enforcing this requirement. Within that group, 18 States Parties explained that no permit or license is issued without an end-user certificate. Some others within this group appear to follow the same regime, but they do not specifically state that in their comments. Of the other 20 respondents, seven indicated that no legislation is yet in place, or that it is being drafted, and one stated that there are no exports of Schedule 3 chemicals.

Positive responses were received from about three-quarters of the States Parties which have declared Schedule 3 facilities, but only from about one-quarter of the States Parties involved in declared import/export activities for Schedule 3 chemicals.

Unscheduled discrete organic chemicals (“DOCs”)

6.28 Identification of producers

Of the 42 States Parties (74% of respondents, including about two-thirds of all States Parties which have declared facilities producing DOCs) which explained their system in relation to identifying producers of DOCs, 14 gather information through declarations/reporting, eight through a survey or questionnaire system, and eight by applying a system of licenses or permits, or mandatory registration. In three cases, on‑site inspections were mentioned. In nine cases, it was not clear which system was being used to identify DOC producers. Of the other respondents, six indicated that legislation is not yet in place, or that it is being drafted.

6.29 Obtaining updated information on production

Twenty-six of the 41 States Parties replying to this question update their information through a system of declarations/reporting, three through inspections, and two through surveys or questionnaires.

7. Miscellaneous questions

Identification of new relevant activities

7.1 Forty States Parties provided further details of the manner in which new producers, processors, and consumers of Schedule 1 and 2 chemicals, and new producers of Schedule 3 or unscheduled DOCs, are identified. This question provided an opportunity for responses to be provided in a narrative form, as an alternative to the short-form answers given earlier in the questionnaire (e.g. see subparagraphs 6.4, 6.9, 6.20, 6.28, and 6.29 above). Measures adopted by respondents included: literature searches, declarations/notifications, surveys/questionnaires (e.g. to new businesses), consultations with government and industry, mandatory registration and reporting, approvals (e.g. permits and licences), and visits/inspections.

7.2 The different types of literature searches included the use of the following: industry databases, local chemical directories, telephone directories, the national registry for chemicals, reviews of industrial statistics, and product registers. Consultations take place with government agencies such as customs authorities, with the authorities who issue notifications, with the National Authority which endorses the permits issued, with chambers of commerce, and with chemical industry associations. Three States Parties gave a differentiated answer – that new production/processing/consumption of Schedule 1 chemicals is identified through compulsory permit or license procedures, and that for other scheduled chemicals, identification is based on declarations.

Tracking imports and exports of scheduled chemicals

7.3 Forty-two respondents replied to questions concerning the implementation of the Convention’s obligations in relation to import and export controls and data reporting. Most respondents apply the same mechanisms for exports as for imports, with the exception of a few States Parties which provide for licensing obligations for exporters, but not for importers. It is worth noting in this context that declarations received of imports and exports of scheduled chemicals involve 119 States Parties (as well as 12 States not party to the Convention). It is a matter of serious concern that, on average, only about one-third of these States Parties reported having relevant controls in place, including only about one-quarter of the States Parties involved in declared import/export activities for Schedule 3 chemicals.

7.4 The general approach seems to be a comparison or reconciliation by the National Authority of authorised imports and exports against data which has been reported by customs, or which has been obtained from importers and exporters (e.g. through declarations), and sometimes from end-users. In many cases, in addition to declarations, questionnaires, and customs data etc., the National Authority also monitors the licensing of importers and exporters, and clears, endorses, or receives copies of licences and permits. End‑users were checked in one case, and another State Party has an integrated computer system, which links all imports at all points of entry, and a permit procedure, which includes an inspection of the imported goods by the army.

Role of customs administrations in controlling transfers of scheduled chemicals

7.5 In the majority of cases, the national customs administration is the main governmental body that enforces the State Party’s obligations under the Convention with respect to transfers of scheduled chemicals. Customs verifies, records, and reports data to the National Authority. Customs authorities also typically assist in tracking illegal transactions, and they are described by one State Party as “the front line agency controlling the entry and exit of prohibited chemical substances”. In general, customs does not have the authorisation to issue licenses or permits for export or import. This function is usually carried out by the National Authority. However, even when customs is not the issuing authority, it plays a crucial role in this process. Customs representatives also have an explicit function in the operations of the National Authorities of some States Parties.

Implementation of the 1996 Customs Cooperation Council recommendation on HS code assignments for scheduled chemicals in the harmonised system

7.6 Twenty-three States Parties (of the 124 States Parties to the CWC that are also contracting parties to the Convention establishing a Customs Cooperation Council) replied that their national customs administrations are implementing this recommendation,[6] including two that indicated that this was in conformity with the combined nomenclature of the European Union. In addition, two States Parties reported that the recommendation is being partly implemented, and six States Parties indicated that they are in the process of implementing the recommendation. These included a number of EU countries awaiting EU agreement, and the issuing of necessary implementing legislation, although some respondents are already using the new coding.

Review of regulations in accordance with Article XI, subparagraph 2(e), of CWC

7.7 Thirty-three States Parties reported that they have reviewed their existing regulations in the field of trade in chemicals, in order to render them consistent with the object and purpose of the Convention. Three States Parties indicated that this matter is in process, and one stated, without elaboration, that its regulations comply with the Convention. The other 20 respondents to the questionnaire either did not reply, or have not yet conducted a review.

Problems and solutions in regulating and controlling scheduled chemicals

7.8 Seventeen States Parties identified problem areas in relation to controlling scheduled chemicals. Seventeen States Parties stated that no problem areas have been identified, and the other respondents did not reply to this question. Problem areas and possible solutions included the following:

(a) exclusive reliance on harmonised tariff codes means that imports and exports are not adequately monitored;

(b) industry databases are out-of-date, and there are difficulties in identifying the relevant chemical industry;

(d) different concentration limits are applied in aggregate national data for scheduled chemicals;

(e) there is a time lag in reporting results when goods remain ex-customs until they are cleared;

(f) issues remain to be resolved in relation to goods in free zones (goods in transit);

(g) within the EU, there is no monitoring of transfers between EU members; and

(h) there is a need for cooperation/harmonisation/uniformity, including finding ways to resolve discrepancies between States Parties.

8. Conclusions

8.1 Conclusions have been drawn from the available material. The questionnaire responses received to date form a representative sample. Moreover, although only 57 States Parties have so far replied to the legislation questionnaire, the assumption has not been made that the other 86 States Parties have no regulations in place. For example, several States Parties which have provided information on legislative and administrative measures to implement the Convention, in accordance with their obligations under Article VII, paragraph 5, of the Convention, have not yet replied to the questionnaire. The Secretariat has also provided comments on draft legislation submitted by some other States Parties. However, the value of the information received, and the conclusions drawn from it, will be increased as more States Parties provide the Secretariat with their detailed responses. States Parties are urged to respond to the questionnaire as soon as possible, and to reply to clarification requests.

Major conclusions from the responses to the legislation questionnaire

8.2 A number of important conclusions can be drawn from the responses to the legislation questionnaire:

(a) that a single, CWC-specific act, usually in combination with other regulatory instruments, administrative orders, etc., is the method preferred by States Parties for implementing the Convention; while a smaller but significant group of States Parties has derived benefits from adopting an “integrated” approach to implementing legislation;

(b) the vast majority (75-81%) of respondents report having legislation in place to regulate scheduled chemicals, and this includes about three-quarters of States Parties with declared/inspectable facilities, but only about two-thirds of all States Parties involved in declared import/export activities for Schedule 1 chemicals, about one-half for Schedule 2 chemicals, and about one-third for Schedule 3 chemicals;

(c) about one-third of respondents are in the process of drafting or re-drafting legislation in relation to scheduled chemicals; only seven respondents (12%) report that no legislation is being drafted, or is in place in relation to scheduled chemicals, and it should be noted that most of these have monist legal systems;

(d) only one-third of respondents are giving their legislation extraterritorial effect;

(e) however, States Parties generally appear to regard the Convention as a serious anti-proliferation device, and most respondents have a system of fairly severe criminal penalties or administrative fines in place. Moreover, the penalty regime which is in place in most States Parties does not distinguish between the scheduled chemicals;

(f) approximately 75% of respondents report that they have legislation in place to implement the Convention-mandated prohibitions on transfers of Schedule 1 and Schedule 2 chemicals; about 5% report that they enforce relevant prohibitions through policy rather than by explicit laws; and another 10% are in the process of drafting the necessary regulations;

(g) about two-thirds of respondents indicate that they are enforcing a requirement for end-user certificates for transfers of Schedule 3 chemicals;

(h) the majority of responding States Parties oblige importers, exporters and/or traders to report their transfers of scheduled chemicals, and about half report using a system of licensing to control imports and/or exports of scheduled chemicals (more use such a system in the case of Schedule 1 chemicals, and there is a slightly higher degree of regulation of exports than of imports). Most of those using such a system issue a single permit for each transaction;

(i) in relation to (unscheduled) DOCs, slightly fewer respondents (72%) report having legislation in place to regulate such chemicals than in relation to scheduled chemicals (and fewer had legislation regulating DOCs in place prior to entry into force of the Convention). Responses were received from about three-quarters of States Parties with declared DOC facilities. States Parties also seem to apply a more lenient approach with respect to offences and penalties in relation to DOCs;

(j) the reasons given for having incomplete or absent legislation generally relate to the lengthy process of preparing and enacting legislation, and to competing legal and policy priorities, or a combination of both of these factors, as well as coordination and information-gathering difficulties; and

(k) a number of other problem areas have been identified; these include difficulties with imports and exports and with customs reporting, with identifying chemicals and the relevant chemical industry, and with the differences in thresholds and concentration limits being applied in connection with declarable chemicals. The consequent need for cooperation in applying OPCW mechanisms, and in implementing decisions has been identified, so that more harmonised and, if possible, more uniform systems between States Parties can be achieved.

Identification, monitoring, and regulatory tools

8.3 In relation to other responses, a greater level of detail was received in relation to the various methods by which States Parties identify and monitor producers of scheduled chemicals and DOCs (and processors and consumers of Schedule 2 chemicals), and users of scheduled chemicals. Stronger regulatory tools, such as licences, permits, and inspections, are more likely to be used for Schedule 1 chemicals than for any other chemicals. A similar picture was evident in relation to identifying the importers and exporters of scheduled chemicals. Less stringent regulatory tools, such as declarations, surveys, and questionnaires, are more likely to be used for identifying producers of DOCs, than for producers of scheduled chemicals.

Mixtures, thresholds, concentration levels, captive use, salts, saxitoxin, etc.

8.4 More than 40% of respondents are regulating mixtures of scheduled chemicals, but only about a third confirmed that they recognise captive use for production of Schedule 2 chemicals. About the same percentage are regulating salts of scheduled chemicals (in most cases only scheduled salts). Only six States Parties reported that they are, or shortly would be, regulating transfers of saxitoxin. In relation to regulating the production and transfers of mixtures, only about a third of the respondents replied to questions relating to thresholds and concentration levels, with a greater number of respondents identifying concentration levels.

8.5 Although there was considerable variety in the responses, it appears that, for transfers of mixtures of scheduled chemicals, a threshold of zero is more commonly adopted than not for Schedule 2 chemicals, as is a threshold of 100 kg or less for Schedule 3 chemicals. Concentration levels of less than 30% are more commonly adopted than concentrations of 30% or more for Schedule 2 and 3 transfers. However, concentrations of 10% and 30% are equally commonly applied in relation to Schedule 2 transfers, and a 30% concentration is the most commonly applied level for transfers of Schedule 3 mixtures. In relation to the production of Schedule 2 mixtures, the CWC level is the most commonly applied threshold (although just as many respondents report applying less than the CWC level), and concentration levels are equally divided between 30% and less than 30%. In relation to the production of Schedule 3 mixtures, equal numbers of respondents apply a threshold of 30 tonnes or less than 30 tonnes, and 30% is the most common concentration.

Final observations – National Authorities, stakeholders, issues and approaches

8.6 There are usually many stakeholders in the regulatory process, including governmental institutions represented on the National Authorities (notified by States Parties in accordance with the Convention), as well as the chemical (and pharmaceutical) industries, importers, exporters, and the traders being regulated. Sometimes the National Authorities are located in separate CWC-implementing bodies or interdepartmental commissions, and National Authorities often have broad intergovernmental representation. This results in a range of policy inputs to the implementation process. It also raises issues as to how to achieve a synthesis between established practices and new policy approaches to implementation.

8.7 The national customs administration is the main governmental body enforcing the regime in relation to transfers of scheduled chemicals, although in most cases, it is the National Authority which has the authorisation power to issue licenses or permits. In this context, it should be noted that more than half of the respondents to the questionnaire indicated that they are, or will soon be, implementing the 1996 Customs Cooperation Council recommendation on HS code assignments for scheduled chemicals in the harmonised sy