Imports and Exports of Chemicals Scheduled Under the Convention.

The individual provisions relating to imports and exports of scheduled chemicals are contained in Parts VI to VIII of the Verification Annex. The risk posed by the individual chemicals is taken into account by their inclusion in one of the three risk-graduated Schedules of Chemicals—Schedules 1 to 3.

Transfer or receipt is possible only between States Parties, in accordance with a precisely defined notification and authorisation procedure. In addition, detailed annual declarations must be submitted on transfers made between the States Parties.

Since 29 April of last year imports and exports have been permitted only between States Parties. Annual declarations on transfers between the States Parties must be submitted on the basis of the following two criteria. The first is the declaration of aggregate national amounts of annual imports and exports for each Schedule 2 chemical. The second is the declaration of annual imports and exports of Schedule 2 chemicals per plant site.

The transfer to States not party to the Convention is possible only with an export licence based on a governmental end-use certificate issued by the consignee country affirming that any misuse of the Schedule 3 chemical in relation to the provisions of the Convention or its re-transfer to another State is excluded. Annual declarations of the aggregate national amounts of imports and exports for each Schedule 3 chemical must be submitted.

These are the obligations stipulated by the Convention for import and export procedures. The following questions arise immediately: are these standards sufficient to ensure the strict implementation of these obligations by all States Parties, and do they provide for the purposeful submission of declarations to the OPCW Secretariat?

The first of these questions must be clearly answered with "No". When the Geneva negotiations were concluded it became apparent that the Convention found approval in its present form although, or perhaps precisely because, some technical parameters, e.g. declaration thresholds etc., were not specified right down to the last detail. Any further negotiation of these "details" would probably have prevented the successful conclusion of the Convention as a whole. The Paris Resolution delegated this task to the OPCW Preparatory Commission on the condition that a solution had to be found by the entry into force of the Convention. With the advantage of hindsight, one can say that this approach was correct. It is highly probable that we would still be locked in negotiations on these questions, given the hesitant attitude of some States Parties to them. However, the Preparatory Commission failed conspicuously to resolve even a single open question concerning imports or exports.

The second question, as to whether the declaration mechanism meets its purpose, must also be answered with "No". In this case, however, the situation is slightly more differentiated. The Preparatory Commission was able to rapidly establish the basis of the declaration procedure for industry-related data through the Declaration Handbook. Its first edition, issued in 1994, had already laid the foundations for the essential types of declarations, and had, in principle, received the approval of all countries participating in the negotiations, albeit in square brackets.

Until today it has not been possible to present a final and approved version of the declaration handbook—the recently published eighth edition represents the current state of affairs. In principle, each State Party can choose the version that best resembles its own national implementation. The regulations for mixtures containing scheduled chemicals are but one example of this. In principle, the present regulation for mixtures was under discussion as early as in 1996. Although several countries had pointed to the fact that a settlement of the open questions was very urgent before the entry into force of the Convention, because they needed these detailed parameters for their national implementation, agreement on this was nevertheless not achieved. Many States Parties subsequently arbitrarily determined different concentration limits for Schedule 2 and Schedule 3 chemicals in mixtures. To best of my knowledge, the range of implemented concentration limits is currently between 0 percent and 80 percent.

The current state of national implementation in this regard is that every State Party has translated its own ideas on, and interpretation of, these unresolved issues into national legislation. This has resulted in an astonishing variety of national regulation. It is, for example, nearly impossible to compare the declarations of the same transfer of a given chemical (import to, and export from, the countries involved). The OPCW Secretariat’s approach of agreeing on these standards in a piecemeal manner aggravates this problem even further, because any new agreement will involve new standards, and thus new amendments of national legislation which may take years to enact, depending on the Member States’ constitutional processes. Thus, another two open issues were settled in 2000 by a decision of the Conference of the States Parties at its Fifth Session. The national implementation of these two decisions - the rounding rules for declarations and the thresholds for Schedule 2B and 3 mixtures - is still pending.

The approach taken by the OPCW Secretariat so far has not facilitated a uniform procedure for declarations of imports and exports.

National implementation of the Convention. Enact implementing legislation in all those States Parties, which have yet to complete this. The annual reports of the OPCW Secretariat reveal that a large number of States Parties still lack national implementing legislation. This includes States Parties that were among the initial parties to the Convention. It is very difficult for these countries to meet their declaration requirements or to collect the required data. The OPCW Secretariat must keep reminding them that they need either to translate these requirements into national legislation, or to affirm that legislative action is not required.

Observance of deadlines for declarations of activities. The States Parties’ discipline in adhering to the declaration deadlines must be improved on. Even in the case of initial declarations, only some of the States Parties submitted their declarations in time, while others were very much delayed. The picture was similar with the subsequent annual declarations: while most States Parties met the deadline, some others, however, did not submit any declarations. One key task of the OPCW Secretariat is to remind States Parties with such tendencies to adhere to the declaration deadlines.

Thresholds for mixtures containing Schedule 2A chemicals. Until now there has been no agreement on thresholds for mixtures containing Schedule 2A chemicals. The ideas of the individual States Parties, whose demands range between 1% and 30%, are too far apart. The dispute seems rather absurd, since the declaration thresholds laid down in the Convention of 1 kg or 100 kg, compared to a threshold of l t for Schedule 2B chemicals, already take account of the different risks posed by such chemicals to the object and purpose of the Convention. A uniform threshold of 30% for all Schedule 2 chemicals would be adequate, and would ensure their simple and uniform regulation.

Thresholds for import and export declarations. Agreement on thresholds for the inclusion of exports and imports into national aggregates is urgently required as a basis for reaching a common understanding of declaration requirements. If all States Parties were to use the same thresholds, e.g. for the amounts fixed for production, improved declaration behaviour would be exhibited at once. Since EIF the OPCW Secretariat has made two attempts at making comparisons, namely in relation to initial declarations and annual declarations in 1996 and 1999 respectively. In the cases under review the variation always exceeded 90 percent. There can be only one explanation for this: because a systematic error is built into the procedure, the present declaration mechanism does not accommodate such comparisons. The comparison of the declared figures does not take into consideration the actual quantities of the chemical produced or traded. If the declarations deviate by more than 20 percent, clarification is sought. A declaration of 0 and 1 kg also deviates by more than 20 percent, but this has no relevance. The logical consequence of this can only be to impose a quantity threshold below which mismatches are ignored. Such a threshold would dramatically reduce the number of erroneous declarations, and the OPCW Secretariat would be able to publish a result with deviations of only probably less than 20%. That would be an acceptable and sound result that would considerably enhance the credibility and transparency of these declaration activities.

Adapted declaration mode for mixtures. As a result of the negotiations of the working groups during the preparatory phase, the declaration of mixtures has to indicate the amount of the pure chemical contained in the mixture. This standard, however, does not correspond to the reality of collecting declaration data. It became obvious during the negotiations that many countries are not in a position - due to a lack of implementing legislation - to collect export and import data under the provisions of the Convention itself, but instead collect it by using customs declarations or statistical registrations. The difficulty is that customs and statistical regulations require the specification of the total amount of a given mixture. Only in very few cases is it possible to identify the exact amount of the chemical itself on the basis of customs or statistical data. This is one of the above-mentioned systematic mistakes that will be resolved only by adapting the declaration standards of the OPCW Secretariat. The reason for this is that transactions in chemicals subject to declaration under the Convention amount to less than 1 per mil of all worldwide transactions in chemicals. It would be unrealistic to expect that well-established procedures, introduced a long time ago, will now be suddenly changed for the sake of a new declaration procedure involving only a very small number of transactions.

Registration and declaration of imports. As a result of the two previous factors it was observed that the number of declared imports was much lower than the number of declared exports. This contributed decisively to the mismatches. This is understandable, because many States Parties have a well-organised export licensing procedure. However, an import will generally be registered if levies or taxes are imposed. Since scheduled chemicals normally do not belong to this specific group of goods, further discussion is required concerning how to improve the acceptance of declaration requirements for imports.

Adopted final edition of the Declaration Handbook. It is very important to adopt all of the above-mentioned proposals for amendment as soon as possible, and to include them, as a package, in a new edition of the industry sections of the Declaration Handbook. The highest priority must be accorded to a simple declaration procedure that is comprehensible to the bureaucracy of each State Party. Only a simple and clear declaration procedure is a good declaration procedure that can lead to greater transparency in transfers of scheduled chemicals.

During the preparatory phase, and since the Convention's entry into force, the participating States Parties have not been able to agree on the necessary parameters which would have permitted the appropriate registration of transactions involving scheduled chemicals. The absence of such parameters has engendered systematic mistakes in the declaration of such exports and imports. Several decisions, e.g. on rounding rules and mixtures, taken by the Conference of the States Parties at its Fifth Session, created the basis for a better functioning declaration system. Further improvements will be possible if some or all of the above-mentioned recommendations are taken up and approved, if possible en bloc, in order to reach a better common understanding of the declaration obligations of all States Parties. High priority must be accorded to a simple and understandable procedure that can be easily implemented by national administrations. This would at best lead to a reduction of the discrepancies in the transfer declaration procedure to maybe 20 percent, or better. A 100 percent overlap of data on imports and exports is, however, completely unrealistic, due to the resistance on the part of many countries to changing their well-established practices of monitoring trade in chemicals simply in order to fulfil CWC-related export and import declarations of scheduled chemicals.

Dr Manfred W. Ruck is currently Director at the German Federal Office of Economics and Export Control, where he has been since 1975. Over the past 25 years, he has been involved in the negotiations of various disarmament issues and international treaties, such as the Non-Proliferation Treaty and the Missile Technology Control Regime. Dr Ruck has also been actively involved in implementing the technical controls for agreements such as the Coordinating Committee on Multilateral Export Control and the Australia Group. Since mid-1993, he has been responsible for the industry implementation of the CWC in German.