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Published online by Cambridge University Press: 17 February 2009
‘We are witnessing today an historic event. An entire category of weapons of mass destruction has been banned by the Chemical Weapons Convention … Pause for a moment, if you will, and consider the symbolism, but more importantly the significance of this act. It is not merely a great step in the cause of disarmament and nonproliferation. It is not merely a signal of restraint and discipline in war. It is much more. It is a momentous act of peace.’
3. The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature on 13–15 January 1993 and entered into force on 29 April 1997. Text available at http://www.opcw.org.
4. For a list of States Parties to the Chemical Weapons Convention see Annex 1.
5. Art. 27 of the 1969 Vienna Convention on the Law of Treaties.
6. For comprehensive analysis see primarily, Krutzsch, W. and Trapp, R., A Commentary on the Chemical Weapons Convention (Dordrecht, Martinus Nijhoff 1994)Google Scholar; Hague Academy of International Law 1994 workshop, The Convention on the Prohibition and Elimination of Chemical Weapons: a Breakthrough in Multilateral Disarmament, (Dordrecht, Martinus Nijhoff 1995)Google Scholar; Bothe, M., Ronzitti, N. and Rosas, A., The New Chemical Weapons Convention — Implementation and Prospects (The Hague, Kluwer Law International 1998)Google Scholar; and http://www.opcw.org.
7. The remainder of Art. I concerns the obligations of each State Party: to destroy its chemical weapons; to destroy chemical weapons it abandoned on other States Parties’ territory; to destroy its chemical weapons production facilities; and not to use riot control agents as a method of warfare.
8. For example, in medical and pharmaceutical preparations, pesticides, defoliants, dyes, printing ink and ball point pen fluids, photography, paints, leather tanning, cement, metal plating, pesticides, toiletries and numerous others.
9. Private industry which is producing, processing or consuming controlled chemicals may find itself subject to new reporting requirements and may fall under the obligation to open its facilities or plants to on-site inspection by international inspectors. Traders may also find themselves subject to increased regulation. States have accepted that the objective of a world free of chemical weapons is worth the additional regulatory burden.
10. Due 30 days after entry into force of the Convention for the State Party.
11. Principally, the state's position on the relationship of domestic law to international law. The two main theories are monism (in the event of a conflict between international law and domestic legislation, international law will prevail) and dualism (international law is applied within a state only if it has been incorporated into domestic legislation).
12. From January 1993 to May 1997, the Provisional Technical Secretariat of the Preparatory Commission for the OPCW was in existence and supported intensive work undertaken by signatory states.
13. Australia, Canada, Finland, Germany, Norway, Peru, South Africa, Sweden and Switzerland. Germany submitted its legislation in four languages (German, English, Russian and Spanish) for dissemination by the Provisional Technical Secretariat of the Preparatory Commission for the OPCW.
14. Kellman, B., Tanzman, E., Gualtieri, D. and Grimes, S., Manual for National Implementation of the Chemical Weapons Convention, 1993, 2nd edn. (Chicago JL, International Criminal Justice and Weapons Control Centre, DePaul Univ. 1998)Google Scholar. The project for the manual was initiated at the suggestion of the Preparatory Commission for the OPCW which also cooperated in the convening of a conference of a Committee of Legal Experts on National Implementation of the Chemical Weapons Convention in 1993 to comment on the penultimate draft of the manual.
15. Preparatory Commission Doc. PC-XI/7/Rev.l, dated 31 May 1996.
16. Aimed primarily at states that do not possess chemical weapons and that have little or no chemical industry relevant to the Convention. Such states usually will have allocated only limited resources for implementation of the Convention. Nevertheless, they still have a number of obligations which need to be met to be in compliance with the Convention. Several National Authorities have found it necessary to carry out significant research and outreach to ensure that all declarable facilities/plants are identified and the owners are aware of the obligations they are required to comply with under the Convention.
17. The Convention may impact several areas of law, depending upon the State Party's legal system, for instance: constitutional law, civilian and military statutes and penal codes, customs, immigration and administrative law, civil and criminal procedure.
18. OPCW Doc. S/85/98, dated 17 November 1998, available from http://www.opcw.org.
19. Prohibitions, penal provisions and extraterritorial application to its nationals.
20. Legal assistance; definition of chemical weapons; declaration obligations; the regime for scheduled chemicals (regulation of Schedule I production/use; criteria for Schedule 2 and 3 declarations; import/export controls); licensing of industry; access to facilities; inspection equipment; respect for inspectors’ privileges and immunities; confidentiality; liability; mandate of the National Authority; enforcement powers of the National Authority; samples; and primacy of the Convention.
21. OPCW Doc. C-III/DG.l/Rev.l, dated 17 November 1998. Available from http://www.opcw.org.
22. In parallel, significant advances have recently been made towards codifying and criminalising, at the international level, chemical attacks. Two instruments were opened for signature in 1998: the International Convention for the Suppression of Terrorist Bombings (which enhances international cooperation between states to prevent acts of terrorism and to prosecute and punish perpetrators) and the Rome Statute for the International Criminal Court (which defines the use of chemical weapons in international armed conflict as a war crime falling within the jurisdiction of the Court). A third multilateral instrument, the Convention to Prohibit Biological and Chemical Weapons under International Criminal Law, is currently being drafted at the initiative of the Harvard Sussex Program on CBW Armament and Arms Limitation. The draft Convention is aimed at making it an international crime of universal jurisdiction for any person anywhere to develop, produce, acquire, stockpile, retain or transfer biological or chemical weapons. This is a clear reflection of international determination not only to prohibit and prevent, but also to punish offenders. Important in this respect was the 1995 Appeals Chamber decision in the Tadić case before the International Criminal Tribunal for the former Yugoslavia (ICTY), which found that the customary international law prohibition of the use of chemical weapons in international armed conflict is also applicable in non-international armed conflict. Thus the basic prohibition of the use of chemical weapons would be binding upon all states, individuals and organisations in all situations.
23. 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.’ (Chapter 2, Section 3 of the amended Criminal Code of Sweden), thus raising the offence, for Sweden, to the level of an international crime of universal jurisdiction.
24. It is noteworthy that the Ad Hoc Group of States Parties to the Biological and Toxin Weapons Convention, meeting in Geneva to negotiate a binding protocol to strengthen that Convention, is considering inclusion of a much more stringent obligation for implementing legislation in the Protocol than the one contained in the Chemical Weapons Convention (‘inform the Organisation of … measures taken'). The bracketed provision contained in Article III D of the January 1999 rolling text of the draft BWC Protocol would require each State Party to submit a legislation declaration within 180 days of entry into force and to notify any changes in legislation:
“[(K.) National legislation and regulations
24. Each State Party shall submit to the Organisation, not later than [180] days after this Protocol enters into force for it, a declaration containing the titles of legislation, regulations, orders or other legal measures that govern, regulate, provide guidance on or otherwise control:
(a)Access to buildings or other structures in which pathogens or toxins are being produced, handled or stored;
(b)Access to buildings or other structures or areas in which an outbreak of infectious disease affecting humans, animals or plants is suspected or is known to be occurring.
The State Party shall provide the Organisation on request with copies of any legislation, regulations, directives, orders or other legal measures declared under paragraph 24. The State Party shall notify changes in such legislation within [90] days of their entry into force or their being promulgated within the State Party.
Copies of the legislation shall be provided, where possible in one of the official languages of the United Nations.]”
The rolling text of the draft BWC Protocol is available from http://www.brad.ac.uk/acad/sbtwc.
25. Annex VII to the 1998 IOMC document, Key Elements of a National Programme for Chemicals Management and Safety, lists the major binding international agreements related to chemicals as: the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources; the 1985 Montreal Guidelines for the Protection of the Marine Environment from Land Based Sources of Marine Pollution; 1989 Montreal Protocol on Substances that Deplete the Ozone Layer; the 1992 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; the 1990 ILO Convention Concerning Safety in the Use of Chemicals at Work; the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances; the 1971 Convention on Psychotropic Substances; the 1961 Single Convention on Narcotics, as amended by the 1972 Protocol; the 1992 Convention on the Transboundary Effects of Industrial Accidents; the 1993 Convention concerning the Prevention of Major Industrial Accidents; the 1993 Chemical Weapons Convention; the 1979 Convention on Long-range Transboundary Air Pollution; the 1986 ILO Convention on Asbestos; the 1971 ILO Convention on Benzene. Voluntary Agreements consist of: the 1989 Amended London Guidelines for the Exchange of Information on Chemicals in International Trade (UNEP); the 1994 Code of Ethics on International Trade in Chemicals (UNEP); the 1989 Amended International Code of Conduct on the Distribution and Use of Pesticides (FAO); and the 1975 Certification Scheme on the Quality of Pharmaceutical Products Moving in International Trade (WHO). Recently opened for signature is the 1998 Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade and currently under negotiation is the International Legally Binding Instrument for Implementing International Action on Certain Persistent Organic Pollutants (POPs Convention). Further information is available at http://www.unep.org.
26. The Intergovernmental Forum on Chemical Safety (IFCS) was established by the International Conference on Chemical Safety in Stockholm in 1994. At its first meeting, the IFCS adopted a ‘Priorities for Action’ plan to implement the recommendations of Chapter 19 of Agenda 21 of the 1992 United Nations Conference on Environment and Development (UNCED) and recommended that National Profiles should be elaborated to indicate the current capabilities and capacities for management of chemical and the specific needs for improvement.
27. The Inter-Organization Programme for the Sound Management of Chemicals (IOMC) was established in 1995 by FAO, ILO, OECD, UNEP, UNIDO, WHO and joined by UNITAR in 1998. It was designed to serve as a mechanism for coordinating policies and activities pursued by the participating organisations, jointly and separately, related to the assessment and management of chemicals. The Secretariat is located at WHO, the administering organisation.
28. In 1996, the United Nations Institute for Training and Research (UNITAR) published, under the auspices of IOMC, a guidance document entitled ‘Preparing a National Profile to Assess the National Infrastructure for Management of Chemicals: A Guidance Document’ and has since been an integral part of the programme, assisting developing countries and countries in economic transition to prepare comprehensive national profiles.
29. Thematic Workshop on Developing and Strengthening National Legislation and Policies for the Sound Management of Chemicals, Geneva, 22 to 25 June 1999. The final report will be available from http://www.unitar.org and http://www.opcw.org.
30. Programmes and initiatives undertaken in other intergovernmental organisations are being viewed with interest, such as the laudable ICRC Advisory Service on International Humanitarian Law, the review of TRIPS laws by the WTO Council on Trade Related Intellectual Property Rights, and the WIPO/WTO joint initiative legal technical assistance programme related to the TRIPS Agreement for developing country members of either of the two organisations.
31. Under Art. X, Assistance and Protection Against Chemical Weapons, assistance means ‘the coordination and delivery to States Parties of protection against chemical weapons, including, inter alia, the following: detection equipment and alarm systems; protective equipment; decontamination equipment and decontaminants; medical antidotes and treatments; and advice on any of these protective measures’. Para. 3 of Art. X provides that ‘Each State Party undertakes to facilitate, and shall have the right to participate in, the fullest possible exchange of equipment, material and scientific and technological information concerning means of protection against chemical weapons.’
32. Art. XI, para. 2(b), provides that States Parties shall ‘undertake to facilitate, and have the right to participate in, the fullest possible exchange of chemicals, equipment and scientific and technical information relating to the development and application of chemistry for purposes not prohibited under this Convention'.
33. UNITAR/IFCS Secretariat, Preparation of National Profiles to Assess the National Infrastructure for the Sound Management of Chemicals, document IFCS/ISG3/98.14B, section 5.
34. UNITAR/IOMC Pilot Programme to Assist Countries in Implementing National Action Programmes for Integrated Chemicals Management.
35. The Argentine National Authority for the Chemical Weapons Convention was established as the Interministerial Commission for the Prohibition of Chemical Weapons in the Ministry of Foreign Affairs, International Trade and Economy. The Board of the Directors of the Interministerial Commission is composed of representatives from the Ministry of Foreign Affairs, International Trade and Economy, the Ministry of Economy and Public Works and Services, the Ministry of Defence, and the Armed Forces Scientific and Technical Research Institute (CITEFA).
36. The Slovenian National Authority for the Chemical Weapons Convention is located in the Ministry of Health.
37. The Zimbabwean National Authority for the Chemical Weapons Convention is located in the Ministry of Foreign Affairs.
38. Dutli, M.T., ‘National Implementation Measures of International Humanitarian Law: Some Practical Aspects’, 1 YIHL (1998) pp. 245 at 254CrossRefGoogle Scholar.
* accession
** The most up-to date figures can be accessed at http://www.opcw.org.