Education and Creating a Culture of Accountability Legal Implications. Cédric Apercé Legal Officer, VERTIC

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1 Education and Creating a Culture of Accountability Legal Implications Cédric Apercé Legal Officer, VERTIC

2 About VERTIC The Verification Research, Training and Information Centre (VERTIC) is an independent notfor-profit organization located in London, United Kingdom, established in VERTIC promotes the effective verification and implementation of international agreements and related regional and national initiatives. VERTIC s National Implementation Measures (NIM) Programme advises States on national implementation of the provisions in the following international instruments: - the Biological Weapons Convention ( BWC ); - the Chemical Weapons Convention ( CWC ); - the Convention on the Physical Protection of Nuclear Material ( CPPNM ) (as amended); - the International Convention for the Suppression of Acts of Nuclear Terrorism ( ICSANT ); - the Code of Conduct on the Safety and Security of Radioactive Sources and other instruments for the security of nuclear and other radioactive material; - as well as UN Security Council Resolution 1540 (2004) ( UNSCR 1540 ). 2

3 Legal Implications of National Implementation: Culture of Accountability Internal dimension: States can investigate, prosecute and punish any offences, including preparatory acts, associated with biological agents or toxins committed by non-state actors States can monitor and supervise any activities, including transfers, involving biological agents and toxins States will enhance their national security and public health and safety External dimension: States will be able to comply effectively with international reporting requirements States obligations under the BWC and UN Security Council Resolution 1540 will be satisfied States with effective and adequate legislation will strongly signal to potential investors that they are a safe and responsible location for activities involving certain biological agents and toxins

4 International legal framework Biological Weapons Convention (BWC) Entered into force on 26 March States Parties and 6 Signatory States Review Conferences every 5 years (8th Review Conference took place in November 2016) BWC Implementation Support Unit BWC website: United Nations Security Council Resolution 1540 (UNSCR 1540) Adopted by UN Security Council on 28 April 2004 Includes decisions legally binding on all UN Member States Extended most recently with resolution 2325 (2016) which Reiterates its decisions in and the requirements of resolution 1540 (2004) 1540 Committee

5 Other related instruments International Health Regulations - Purpose and Scope prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade. (Art 2, IHR 2005) - Applicable to all health risks irrespective of origin or source - Requires states to strengthen surveillance and response capacities including at ports, airport and border crossings - Introduces certain documents including international certificates of vaccination, maritime declarations of health World Organisation for Animal Health s Terrestrial Animal Health Code and Manual of Diagnostic Tests and Vaccines for Terrestrial Animals

6 The BWC States Parties commit to: never in any circumstances develop, produce, stockpile, otherwise acquire or retain, use or transfer biological weapons; (Articles I and III) to destroy any biological weapons or divert to peaceful purposes; (Article II) to take national implementation measures in accordance with constitutional processes; (Article IV) to consult one another and cooperate in solving any problems which may arise in relation to the objective and/or application of the Convention; (Article V) to engage in international cooperation in the peaceful uses of microbiology and implement the BWC in such a way as to avoid hampering the economic and technological development of States. (Article X)

7 UN Security Council Resolution 1540 UNSCR 1540 includes legally binding decisions on all UN Member States to: -adopt and enforce appropriate effective laws which prohibit any non-state actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them (OP2) -prevent the proliferation of NBC weapons and their means of delivery, including controls over dual-use materials (OP3) 2016 Comprehensive review of UNSCR 1540: The [1540] Committee is strongly of the view that States should take urgent action to adopt measures to account for and secure materials related to biological weapons

8 National implementation of UNSCR 1540 and the BWC What is national implementation? A process by which a State Party adopts, in accordance with its own constitutional processes, appropriate and effective legislative and regulatory measures to carry out and enforce the obligations to which it has committed when ratifying or acceding to a Treaty. What measures should be adopted to implement UNSCR 1540 and the BWC? - Definitions - Prohibitions, penalties and alternative criminal liability - Jurisdiction - Domestic controls: accounting for, securing and physically protecting biological agents toxins - Transfer controls - Domestic controls: enforcement; incl. national authority (ies)

9 National Implementation Measures (1/4) 1) Definitions: biological weapon, biological agent, toxin, etc. 1) Prohibitions of certain activities and penalties: Offences related to biological weapons: development, production, possession, transport, use, etc. Offences related to biological agents and toxins: development, acquisition, possession, storage, transport, transfer, etc. without authorization Alternative criminal liability 3) Jurisdiction: extending the reach of the prohibitions: To natural and legal persons Extraterritorially (e.g. jurisdiction on the basis of nationality of perpetrator, nationality of victim, impact on State interests)

10 Examples of legislation in force US Code, Title 18, Part I, Chapter 10, para. 178: As used in this chapter (1) the term biological agent means any microorganism (including, but not limited to, bacteria, viruses, fungi, rickettsiae or protozoa), or infectious substance, or any naturally occurring, bioengineered or synthesized component of any such microorganism or infectious substance, capable of causing (A) death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism; (B) deterioration of food, water, equipment, supplies, or material of any kind; or (C) deleterious alteration of the environment; Panama, Criminal Code (Law No. 14 of 2007), Article 445: "... with the same penalty shall be punished who develops, produces, stores, transfers or does not destroy bacterial, biological, toxic, chemical or anti-personnel mines." Panama, Criminal Code (Law No. 14 of 2007), Article 18: "The criminal law shall apply to acts punishable in the national territory and other places subject to the jurisdiction of the State, except for the exceptions established in the international conventions and norms in force in the Republic of Panama..."

11 National Implementation Measures (2/4) 4) Biosafety and biosecurity measures: Biosafety: principles and practices for the prevention of unintentional exposure to biological materials, or their accidental release (OIE Terrestrial Manual). Biosecurity: set of management and physical measures designed to reduce the risk of introduction, establishment and spread of animal diseases, infections or infestations to, from and within an animal population (OIE Terrestrial Animal Health Code). Some specific biosafety and biosecurity measures could include: - List of controlled biological agents and toxins - System for notification of accidents, loss or theft - Comprehensive record-keeping - Physically secure laboratories - Biosafety and biosecurity training for personnel - Secure transportation

12 Examples of legislation in force US Code Title 7 Sec. 3353: (b) Guidelines for agricultural biosecurity (1) In general The Secretary may award grants to associations of food producers or consortia of such associations for the development and implementation of educational programs to improve biosecurity on farms in order to ensure the security of farm facilities against potential bioterrorist attacks... Honduras, Regulation on the Registration, Use and Control of Pesticides and Related Substances (Agreement ), Article 1: "The purpose of these regulations is to establish the technical, administrative and legal provisions of the Phytozoosanitary Law concerning the registration, importation, manufacture, formulation, repackaging, refurbishment, transport, storage, sale, use, handling and export of agrochemicals, biological, biotechnological or related substances. "

13 National Implementation Measures (3/4) 5) Transfer Controls: List of controlled biological agents and toxins, and biological equipment and technology Transfer permit system End-user certificate Effective border controls Examples of legislation in force Belize, Agricultural Health Authority Act (2000), Section 60 1 No biological [ toxins, anti-toxins, antigens and micro-organisms and parts of micro-organisms living or killed ] may be imported into Belize save under and in accordance with Regulations made by the Minister under the provisions of section 61 of this Act.

14 National Implementation Measures (4/4) 6) Legislative enforcement: National Authority start with notifying a national point of contact to the BWC s Implementation Support Unit National licensing system Inspections of laboratories and other facilities where controlled biological agents or toxins may be found Training and special powers for law enforcement officials including customs and other border officials, sea port and airport authorities Disease surveillance; response capability in the event of a natural, accidental or intentional outbreak; co-operation among law enforcement, health officials and doctors as well as among Ministries of Health, Environment and Agriculture, etc. International co-operation on judicial and criminal matters

15 Examples of legislation in force US Code Title 7 Sec (3) strengthen coordination with the intelligence community to better identify research needs and evaluate materials or information acquired by the intelligence community relating to potential threats to United States agriculture; (4) expand the involvement of the Secretary with international organizations dealing with plant and animal disease control; (5) continue research to develop rapid detection field test kits to detect biological threats to plants and animals and to provide such test kits to State and local agencies preparing for or responding to bioterrorism; (6) develop an agricultural bioterrorism early warning surveillance system through enhancing the capacity of and coordination between State veterinary diagnostic laboratories, Federal and State agricultural research facilities, and public health agencies; and (7) otherwise improve the capacity of the Secretary to protect against the threat of bioterrorism

16 VERTIC Work & Tools Fact sheets on the BWC Comprehensive BWC legislative analysis template and statistics database (not publicly available) Model legislation: VERTIC s BWC Sample Act VERTIC s Online BWC Legislation Drafting Assistant VERTIC s BWC Legislation Database Provision of cost-free tailored legal assistance to State Partnership with other organisations (BWC ISU, OIE, etc.) OIE VSLP mission in Belize OIE VSLP mission in Panama

17 Thank you Cédric Apercé, Legal Officer See also: > Programmes > National Implementation Measures 17