CONFERENCE OF THE STATE PARTIES
ISLAMIC REPUBLIC OF IRAN
COMPLIANCE WITH ARTICLE VII: A CASE STUDY
FOR THE PROHIBITION
OF CHEMICAL WEAPONS
July 1, 1999
The following paper was presented at the Thematic Workshop on Developing and Strengthening National Legislation and Policies for the Sound Management of Chemicals in Geneva, Switzerland, 22-25 June 1999 by Mr A. A. Soltanieh, Secretary of the National Authority for the Chemical Weapons Convention.
Iranian Approach Towards Harmonization of National
Policies for Various Chemical Conventions
1.1 The Consultative Assembly of Islamic Republic of Iran ratified the Chemical Weapons Convention on 27 July 1997. The Guardian Council of Constitution approved the decision on 30 July 1997 accordingly. The instrument of ratification was deposited with the Secretary-General of the United Nations on 3 November 1997. The National Authority was established under the National Supreme Security Council, in order to have highest authority in supervising the full compliance of all chemical industrial sectors to the provisions of the Chemical Weapons Convention (CWC).
1.2 The Secretariat of the National Authority was, however, established in the Ministry of Foreign Affairs, since international relations, particularly with the Organization for Prohibition of Chemical Weapons, would be facilitated.
1.3 Following the intensive activities of the first unique experience of the National Authority the conclusion was made that there is considerable overlap between the CWC and other chemical conventions, particularly the safety related ones, such as PIC and POPs, as far as national legislation and policies are concerned. Iranian Customs has been requested by the National Authority to control fully the export and import of all scheduled chemicals in accordance with the CWC. Similar measures have to be made with respect to the chemical safety conventions. The Government did, therefore, decide to entrust the responsibility of all chemical related conventions to the National Authority for CWC. The justification of said decision, planning and the achievements will be dealt with in detail in the paper.
2.1 Chemical Weapons Convention
The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC) was signed on January 13, 1993 in Paris, entered into force on April 29, 1997. The Islamic Republic of Iran signed it in 1993, its parliament ratified the CWC on 27 July 1997 along with a document setting out principles such as non-discrimination, free exchange of information and trade for chemicals to be used for peaceful purposes. The Government is instructed to make sure these concerns are fully observed during implementation.
2.2 Chemical safety conventions
i. Rotterdam Convention on Prior Informed Consent (PIC)
During the United Nations Conference on Environment and Development (UNCED) convened in Rio de Janeiro in June 1992, the world community came to the conclusion that, although the use of chemicals is essential to meet social and economic goals, a sound management of chemicals is also vital for their safe and sustainable application. Chapter 19 of Agenda 21, the program of action adopted by UNCED, contains an international strategy for action on chemical safety. According to its paragraph 19.38(b), the States were called on to spare no effort for the conclusion of the procedures for the application of the Prior Informed Consent (PIC). In November 1994, the 107th meeting of the FAO Council agreed that the FAO Secretariat should proceed with the preparation of a draft PIC Convention as a joint effort with the UNEP.
In May 1995, the 18th session of the UNEP Governing Council adopted decision 18/12, which authorized the Executive Director to convene, with the FAO, an Intergovernmental Negotiating Committee (INC). The FAO and UNEP adopted the mandate of the INC in 1996 and 1997 respectively. The INC was able to conclude its task, after two years, under the competent Madam Chair, Ms. Maria Celina de Azevedo Rodrigues of Brazil, preparing the final draft of the PIC Convention at its fifth session, 9-14 March 1998 in Brussels. The text of the Convention on PIC was adopted by the Plenipotentiary Conference held in Rotterdam,10-11 September 1998.
The Islamic Republic of Iran has actively participated in the INC and the Rotterdam Conference, and signed the Convention on 17 February 1999, with the expectation that this legally binding treaty will reduce the environmental and health risk posed by hazardous chemicals and pesticides. The industrial countries are expected to cooperate fully with the recipients in this regard.
ii. Persistent Organic Pollutants (POPs)
During the last few decades we have been witness to a dramatic growth in manufacturing of chemicals releasing high toxic pollutants, in particular POPs. These highly stable compounds are used as pesticides or in industry. Reducing the risks from POPs is not a simple task, but it can and must be done. The key is promoting shifts to alternatives, both chemical and non- chemical. Alternatives to POPs can be encouraged through voluntary programs, public awareness campaigns, economic incentives, restrictions, and as a last resort, ban on use or production. The solution depends on particular climatic and socioeconomic conditions of each country.
iii. Other hazardous chemicals and international measures
The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 provides the framework for regulation of precursors that are frequently used in the illicit manufacture of drugs. The Islamic Republic of Iran ratified the said Convention in 1992. Iran has been used as a transit route for smuggling of acetic anhydride to neighboring countries. The Iranian government has spared no effort in combating the illicit traffic (according to the report of the UNDCP Regional Office for Asia, 13 tons of such material were seized in 1995). It is believed that by generating the necessary political will through advocacy, countries can be encouraged to take such measures as are necessary to regulate precursors.
3. National Policies and Legislation
3.1 According to Article VII of the CWC, each State Party shall designate or establish a National Authority to serve as the national focal point for effective liaison with the OPCW and other States Parties. Similarly, according to Article 4 of the Rotterdam Convention, each party shall designate one or more national authority that shall be authorized to act on its behalf in the performance of the administrative functions required by the Convention.
3.2 The Iranian National Authority was established immediately after the ratification of the CWC. It is under the Supreme National Security Council. The Council which includes the ministers and heads of the following organizations, plays the role of policy making organ. The Council members are: The Ministries of Industry, Agriculture, Construction Jihad, Defence, Health, Petroleum, Trade and Customs being involved in the CWC. The National Authority was also entrusted with the responsibility of the Chemical Safety Conventions. In order to do so, the Vice President in charge of the Environment Protection Department and the Ministry of Energy are particularly involved in the decisions on safety conventions such as PIC and POPs.
3.3 With regard to national implementation, it is believed necessary for countries to prioritize the actions that need be taken, for everything cannot be achieved overnight. Some controls have to be phased in, monitored and evaluated before they could form part of the broader regulatory system. The formulation, enactment and enforcement of laws and regulations are often time consuming, tedious and resource demanding. This is particularly true when regulating chemicals, where a multiplicity of national authorities and agencies exist.
3.4 The introduction and enforcement of national regulations and the development and maintenance of institutional capacity to monitor and assess environmental quality are basic and essential steps towards addressing domestic, regional and global environmental problems. This process can be facilitated by regional and multilateral agreements. Such agreements can have their own monitoring and enforcement mechanisms, transitional grace periods reflecting different economic and environmental conditions, and dispute settlement procedures. They can also contribute to progress by harmonizing criteria, tools and methods for measuring ecosystem risks and evaluating performance.
3.5 The practical difficulties in this regard are the establishment of the infrastructure, coordination between the suppliers and the consumers of the chemicals in question, and continuous monitoring of the compliance of the various sectors by a full authorized national body. Although the ratification of a Convention by Iranian parliament could facilitate follow up actions, such as the adoption of the national implementation law, due to the fact that practical and more detailed issues for implementation are to taken into consideration and the judiciary, which is an independent body, should also be involved in setting out the provision related to the violation of the laws, the adoption of legislative procedure for the implementation of the conventions (Article VII of the CWC ) is a time consuming process.
3.6 The National Authority is preparing the text of the National Legislation for the implementation of the CWC. The draft will be submitted to the Commission of the Ministers cabinet for Parliamentary Bills. After thorough study the clean text will be before the cabinet for its approval and subsequent submission to the parliament for its consideration and adoption. Depending on the priority attached to it, the parliament puts “the priority “ on vote first, and decides on the contents next. Needless to say the text is passed to the relevant commission for its preliminary approval before the plenary deals with it. Assuming that all relevant ministries are fully supporting the act, the aforementioned process has to be followed.
4. Constraints on implementation
4.1 The Chemical Weapons Convention is a unique multilateral disarmament treaty with a wide range of direct applications on industrial development, thus it has unavoidable implications for national interest and security of States Parties. Diversity of private industries along with the lack of previous experience and centralized data relevant to the CWC caused serious difficulties in preparing the initial declarations. The fact that only 36% of States Parties could fulfill this part of their obligation, the submission of the declaration, is a clear indication that the timelines set out in the CWC were not feasible. The custom systems are consistent with the chemical codes and CAS numbers as defined in the CWC. These are part of the practical constraints for implementation of the conventions.
5. Education and Public Awareness
a. Introduction of CWC
In order to create appropriate ground for the effective implementation of the CWC, the National Authority, with fruitful cooperation of the OPCW, conducted an intensive three week introductory course for over 70 representatives of various industries, from both governmental and private sectors, customs, and other relevant administrations, in May 1998. The course was successfully convened in the Educational Center of the Ministry of Petroleum, in a pleasant atmosphere on the coast of the Caspian Sea. The participants had a scientific tour along with a trial inspection in one of the chemical industries. As the result of such policy, the National Authority has had excellent working experience and ‘one on one’ relationships with all the institutes involved in this respect.
b. Seminar on Customs and the CWC
In order to introduce the role of customs in import and export control as envisaged in the CWC, an intensive seminar for top officials and experts of Iranian customs and department of quality control and chemical analysis of the National Institute for Standards was held on 10 March 1999. The seminar was organized by the Secretary of the National Authority with the assistance of the OPCW. Dr. Ralf Trapp, from the ICA Division of the Technical Secretariat gave excellent assistance in planning, delivering comprehensive lecture and participating in panel discussion. The summary and conclusion of the seminar is as follows:
i. Enforcement of export and import regulations and restrictions in relation to scheduled chemicals is not a simple task.
ii. Data collection for exports and (perhaps more importantly) imports is manageable for declared site (data collection at source) but difficult.
iii. There is no direct correlation between the chemical nomenclature used in the Chemical Weapons Convention and the nomenclature used by customs organizations for tariff purposes.
iv. The present recommendation from the World Customs Organization (WCO) is not entirely adequate.
v. Amendment of the HS Convention to the effect that individual scheduled chemicals can be easily identified by customs authorities is unlikely.
vi. The current status of implementation of the recommendation of the WCO on the use of 6 digit subheadings for (8 or 10 digit level on national basis) is not satisfactory.
vii. Effective customs enforcement of CWC requirements by all States Parties is essential to establish primacy of CWC over other non-proliferation measures, improved international cooperation in this field is of paramount importance.
Note: The OPCW will in 1999 organize international workshops on customs enforcement issues to share experience between CWC member states.
6. Incentive for industries
6.1 One of the effective incentives for the developing countries to join the international treaties on disarmament, such as the CWC, is the unhindered flow of information on chemicals for peaceful purposes. The industries in a State Party do expect the authorities to facilitate the access to the required permissible material and equipment in return of their full commitments, in particular stopping the production of chemicals which have to be stopped following the adherence of the country to a Convention. The National Authority of Iran has already been instructed to collect information on any restriction or denial by potential suppliers, other states parties, and to work towards the total removal of the obstacles.
6.2 One of the most serious difficulties of the National Authorities of developing countries is the concern of industries with regard to unfair treatment, namely the equal international legally binding commitments for countries with totally different and unequal chemical activities. They believe that the industrialised countries have already gained a lot, both financial and technological benefits, during the development and production of various chemicals while the consumers, the developing countries, have paid the price, sacrificed their people and environment for the research and development of high toxic chemicals.
6.3 Considering the above, they are not expected to be treated on an equal footing. The developing countries have to be given more time to cope with the provisions of such conventions. The potential end users such as farmers could not change their normal practice and dependence, for example on certain fertilizers or pesticides, overnight. Some countries, which have been able to establish small scale chemical production facilities, matching their local infrastructure, would certainly resist a ban on production as well as selection of a completely new approach.
7. Enforcement and Penal Measures
7.1 The Iranian National Authority is fully responsible for the national implementation of the Convention and co-ordinates the enforcement with the help of the Judiciary and Law Enforcement Forces in case of reported violations.
8. Environment & Safety
8.1 International environmental norms and treaties may limit the State Party discretion as to how it will assign the highest priority to consider the environmental effect of its activities. The application of these legal limits depends on whether the State Party to the chemical convention in question, is also party to a particular international instrument. The principles 15 and 17 of the Rio Declaration on Environment and Development require states to consider the environment impacts of a proposed action and to implement measures to prevent environment degradation. The CWC calls for the safety policy and regulation, the most stringent one of the OPCW or the inspected state party (ISP), in order to protect both the OPCW inspectors and the ISP personnel. Some chemicals such as DDT are still used in a few rural areas of Iran although the Ministries of Agriculture and Health have been trying their best to train and to offer alternatives. Similarly the PCBs are serious concerns of the Ministry of Energy.
8.2 The environmental threats beyond the border are also part of the preoccupation of Iranian authorities. It is worth mentioning that the dumping of dangerous toxic chemicals in the international waterways threatens the health and safety of the littoral states including Iran. The release of hazardous pollutants such as FOC in the atmosphere is our global concern. The Iranian Department of Environment Protection is studying the case.
8.3 On the occasion of the adoption and signature of the Rotterdam Convention the two most relevant organizations, UNEP and FAO, expressed their safety concerns in the following manner: The Executive Director of the UNEP, Mr. Klaus Topfer said, “There are about 70,000 different chemicals on the market and 1.500 new ones being introduced every year, many governments are unable to monitor and manage the many potentially dangerous substances crossing their borders. He further added, “By shining a spotlight on the problem and setting up trade controls and an information exchange procedure, this new treaty (Rotterdam Convention), will help to save lives and reduce the poisoning of the environment.”
8.4 Dr. Jacques Diouf, Director-General of FAO also expressed similar concern and said many pesticides that have been banned or whose use has been severely restricted in industrialized countries are still marked and used in developing countries. These chemicals pose serious risks to the health of millions of farmers and the environment. He believed that the Convention is an important step forward in helping governments to decide if they want to use and import those hazardous substances or not. The Convention initially covered 22 pesticides and five industrial chemicals but it seems that many more are expected to be added. The developing countries will definitely be faced with internal problems if the relevant international organizations and their technical bodies do not inform them of their recommendations in advance. For instance, many worry about the applicability of the POPs which takes a step forward (compared to the PIC), and is envisaged to require a total ban.
9. Protection of Confidential Information
9.1 The issue is considered a constraint in an effective implementation of the international conventions. Each State Party is expected to give effect to the CWC measures to protect confidential information. Similarly, confidentiality may be jeopardized by CWC activities, including required declarations and inspections. The State Party cannot withhold its required national security or confidential business information, but may take steps to protect these kinds of information justifications for addition of new items to the list, and take into consideration the concerns and difficulties of the developing states in applying those restrictions.
9.2 The careful and full commitment of the Secretariat and the inspectors of the OPCW to the Confidentiality Policy is the main concern of States Parties, particularly those from strategic regions, such as the Middle East from which countries are still outside the CWC. There are similar, less security than safety, concerns, about the other chemical conventions. The National Authority is expected by various industries, for competition reasons, to take this issue into serious concern.
The Iranian harmonised and integrated approach towards the chemical conventions, the CWC, PIC and POPs has proved to be successful. The high profile of the National Authority, in co-ordinating and monitoring the implementation of the national legislation as far as the national commitments towards the international conventions is concerned, has played the key role in such a satisfactory result. The decision to place the Secretariat of the National Authority under the Ministry of Foreign Affairs has also facilitated international communications in the most efficient manner. Needless to say, the relevant ministries retain their responsibility in implementation of national legislation as far as health, safety and security are concerned.
Attachment: Additional Information
ATTACHMENT (Additional Information )
The Constitution of the Islamic Republic of Iran vis-à-vis the conventions:
The Articles relevant to the ratification and implementation of international treaties are as follows:
A. Role of the Parliament
Article 71 : The Majlis (Parliament) may, within the limit of the Constitution, enact laws on all matters.
Article 72: The Majlis may not enact laws contrary to the principle and rules of the official Faith of the country or constitution. This fact shall be decided by the Guardian Council in the manner set forth in article 94.
Article 73: The interpretation of ordinary laws shall be within the competence of the Majlis. However, this shall not prevent the judges from interpreting laws while administering justice.
Note: According to Article 98 the interpretation of the constitution shall be the responsibility of the Guardian Council.
Article 74: The Government bills shall be presented to the Majlis after having been approved by the Council of Ministers.
Article 76: The Majlis shall be empowered to investigate and scrutinize all matters related to the country.
Article 77 : All international conventions, protocols, treaties and pacts shall receive approval by Majlis.
Legislative procedure for Iran to join an international Convention:
The ministry which has the most concern as regards to adherence to the convention in question, has to take the issue to the cabinet. The Commission in charge of the bills will consider the text (identical text in both English and Farsi). The Commission makes an inquiry from the Legal Department of the Ministry of Foreign Affairs for its views and preferably its approval (if the MFA is not the proponent of the approval of the text ).
B. Role of the Guardian Council:
Article 94 : All legislation passed by Majlis shall be sent to the Guardian Council. Within a maximum period of ten days from the date of its receipt, the Guardian Council shall be required to examine the same to ensure that it conforms to the principles of Islam and the Constitution.
C. Role of Judiciary Power :
Article 156 : The Judiciary shall be an independent power that protects individuals and social rights, shall be responsible for the implementing justice and shall carry out the following functions:
1. To examine and pass judgement in respect of litigation’s, violations, complaints; to settle lawsuits, resolve hostilities and to take necessary decisions and actions on respect of that part of matters of personal status to laid down by law.
2. To restore public rights and to promote justice and lawful freedoms.
3. To uncover crimes, to prosecute and punish the criminals.
4. To take suitable measures for preventing the commission of crime and to reform the offenders.
Note: According to article 160 the Minister of Justice shall be responsible for all matters concerning the relations of the judiciary with the Executive and the Legislative Branches. He shall be appointed from among those proposed to the President by the Head of Judiciary
Comparison of the CWC and the PIC
As one could easily notice from the above articles both Conventions have almost the same approach as far as national legislation, legitimisation and enforcement are concerned. However, the targets and the substantial objectives are not the same, the CWC is a security related convention whereas the PIC (similarly POPs) has health and safety as well as environmental protection orientation. Needless to say that, the CWC has also health and safety concerns due to the potential threat of the chemical weapons and their destruction process (paragraph 3 of Article VII calls upon State Parties to assign the highest priority to ensuring the safety of the people and to protecting the environment during the implementation of their obligations under the CWC). On the basis of their particularities and the similarities, the Iranian government has decided to bring both conventions under the same umbrella, the National Authority, but in different sub-commissions with different members (Ministers ).
Constraints for universality
In some cases developing States Parties are denied access to chemicals for peaceful applications, with unjustified security reasons, whereas the chemicals in question are among those with safety concerns which are still pending, either in international technical gatherings (POPs, BASEL, PIC) or in national legislative and industrial circles. These status quo will undoubtedly affect the positive approaches of developing states to adhere to such conventions, thus speedy realization of their universality. In order to remove this constraint on the promotion of international cooperation, the Islamic Republic of Iran has proposed a transparent approach in reporting any denial to the OPCW Secretariat in order to be reflected in an appropriate manner to the decision-making bodies of the OPCW.