 United |
Security Council
Distr.
GENERAL
S/1995/1017
7 December 1995
ORIGINAL: ENGLISH |
LETTER DATED 7 DECEMBER 1995 FROM THE CHAIRMAN OF THE SECURITY
COUNCIL COMMITTEE ESTABLISHED BY RESOLUTION 661 (1990)
CONCERNING THE SITUATION BETWEEN IRAQ AND KUWAIT ADDRESSED TO
THE PRESIDENT OF THE SECURITY COUNCIL
I have the honour to refer to paragraph 7 of Security Council resolution
715 (1991), by which the Council:
"Requests the Security Council Committee established under resolution 661
(1990) concerning the situation between Iraq and Kuwait, the Special
Commission and the Director General of the [International Atomic Energy]
Agency to develop in cooperation a mechanism for monitoring any future
sales or supplies by other countries to Iraq of items relevant to the
implementation of section C of resolution 687 (1991) and other relevant
resolutions, including the present resolution and the plans approved
hereunder;".
I am transmitting herewith, with the concurrence of the Executive
Chairman of the Special Commission and the Director General of the
International Atomic Energy Agency (IAEA), a report prepared by the
Committee established by Security Council resolution 661 (1990), the
Special Commission and the Director General of IAEA that contains the
provisions for the mechanism for export/import monitoring under paragraph 7
of Security Council resolution 715 (1991) of 11 October 1991.
The report is also accompanied by the text of a letter, dated 17 July
1995, which was addressed to me by the Executive Chairman of the Special
Commission. This indicates the general principles that will be followed in
implementing the export/import mechanism in Iraq and it is transmitted to
the Council for purposes of information.
It is hoped that it will be possible for the Council to take an early
decision on the report transmitted herewith, so that preparations, as
necessary, may be pursued at the national level for the implementation, at
the appropriate time, of the export/import mechanism. Such a decision will
also allow the Special Commission and IAEA, which the report proposes be
mandated to implement
95-39303 (E) 071295/...
*9539303*
the mechanism, to proceed with those preparations which, until now, it has
not yet undertaken, pending a mandate.
(Signed) Tono EITEL
Chairman of the Security Council Committee
established by resolution 661 (1990)
concerning the situation between
Iraq and Kuwait
Annex I
Provisions for the mechanism for export/import monitoring
under paragraph 7 of Security Council resolution 715 (1991)
of 11 October 1991
Report prepared by the Committee established by Security
Council resolution 661 (1990), the Special Commission
and the Director General of the International Atomic
Energy Agency
I. OBJECTIVE
1. By paragraph 7 of its resolution 715 (1991) of 11 October 1991, the
Security Council:
"Requests the Security Council Committee established under resolution 661
(1990) concerning the situation between Iraq and Kuwait, the Special
Commission and the Director General of the [International Atomic Energy]
Agency, to develop in cooperation a mechanism for monitoring any future
sales or supplies by other countries to Iraq of items relevant to the
implementation of section C of resolution 687 (1991) and other relevant
resolutions, including the present resolution and the plans approved
hereunder".
The present report is submitted to the Security Council pursuant to that
request.
2. The export/import mechanism (hereafter "the mechanism") is one element
of the Special Commission's and IAEA's plans (S/22871/Rev.1 and
S/22872/Rev.1 and Rev.1/Corr.1), approved by Security Council resolution
715 (1991), for ongoing monitoring and verification of Iraq's undertaking
not to reacquire proscribed weapons capabilities. Such monitoring is of
indefinite duration and is to continue until the Security Council decides
that it should be terminated.
3. Paragraph 7 of resolution 715 (1991) makes provision for the monitoring
of sales or supplies by other countries to Iraq of items covered by the two
plans after the sanctions imposed by resolution 661 (1990) on those items
have been reduced or lifted pursuant to paragraph 21 of resolution 687
(1991). The mechanism should provide important data, which will serve as
one of the main tools for ensuring that Iraq does not reconstitute its
weapons of mass destruction programmes. It is evident, therefore, that the
mechanism must be in place before any decisions are taken by the Security
Council to reduce or lift sanctions on items covered by the relevant
resolutions and the plans.
4. It follows that there will be a period of time after the Security
Council adopts the mechanism before it reduces or lifts sanctions on items
covered by the mechanism. For as long as these items remain subject to the
sanctions under resolution 661 (1990), the Committee established under that
resolution shall continue to perform its present functions, and any
requests for the sale of such items to Iraq, as essential for civilian
needs, should be addressed in accordance with existing procedures. The
Committee shall seek the advice of the Commission or IAEA, as the case may
be, on the disposition of the request. If authorization is granted by the
Committee, the Commission and IAEA will be so informed to enable them to
make the necessary arrangements to monitor the items in Iraq.
5. The mechanism takes account of the requirements of paragraph 7 of
resolution 715 (1991), and of certain elements in the plans approved under
that resolution including a requirement for timely information about any
sale or supply to Iraq by other States of items covered by the plans. The
mechanism also takes account of the continued embargo on the sale or supply
to Iraq of items prohibited by paragraphs 8 and 12 of resolution 687
(1991).
6. The mechanism is not a regime for international licensing, but rather
for the timely provision of information by States in which companies are
located which are contemplating sales or supplies to Iraq of items covered
by the plans. 1/ Iraq's obligations, comprehensively spelled out in the
plans, are further detailed in the mechanism.
7. Even without inspecting every import into Iraq, it is feasible to
establish an effective and credible mechanism. It must be robust enough to
deter Iraq and suppliers 2/ from potential breaches. The mechanism must
also be augmented by the ability of the Commission and IAEA to conduct
unrestricted inspections throughout Iraq. No other existing export/import
control has such supplementary ground inspection rights. Nevertheless, to
be workable, the mechanism must also be sufficiently simple so as not to
place an undue reporting burden on Governments. The aim is to encourage
companies and Governments to report all of interest, while keeping data
volume manageable for all concerned.
8. Each Government shall determine what measures it has to take to give
effect internally to the notification requirements under the mechanism
(e.g. requiring national licences). Each Government shall remain free to
enact prohibitions or controls on exports that go beyond the requirements
of the Security Council resolutions and the mechanism.
9. The mechanism aims to secure timely notification of the export to Iraq
of any items identified in the plans for ongoing monitoring and
verification. Both Iraq and the Governments of suppliers shall provide
these notifications in advance of shipment. These notifications shall
identify the supplier, give a description of the item or items (including
technology) and provide the name of the end-user or consignee and the
expected date of dispatch/shipping. Other information, when available to
the Government of the supplier, which should assist in administering the
mechanism, shall also be included in the standardized notification forms
referred to in paragraph 14 below. The notifications are imperative, as
they make it possible to monitor the supply to Iraq of all items covered by
the plans, both non-proscribed dedicated-use items and dual-use items
(i.e., those items that can be used for either permitted or proscribed
purposes). Iraq shall also report the export of items subject to the
plans, whether such items are in the original or modified form, so that the
Commission and IAEA can maintain full accounting for all monitored items.
10. If an item, the import of which should have been notified under the
mechanism but was not, is found in Iraq, the import would constitute a case
of non-compliance with the monitoring regime established by the plans for
ongoing monitoring and verification. The steps to be taken in cases of
non-compliance are defined in paragraphs 22 to 24 of the Special
Commission's plan and paragraphs 36 to 39 of the IAEA plan. The strong
presumption would be that the item had been procured for prohibited
purposes and so, as such, would be subject to disposal in accordance with
the measures provided for in paragraphs 8 and 12 of Security Council
resolution 687 (1991).
II. SCOPE
11. The annexes to the plans for ongoing monitoring and verification, and
any appendices thereto, identify the items and technologies which Iraq, as
importer, and the Government of the supplier, as exporter, shall notify. A
compendium of definitions of terms used in the annexes shall be provided to
Governments. This compendium shall have the same status as the annexes.
12. For purposes of monitoring within Iraq and reporting by Iraq, such
monitoring and reporting covers all items and technologies provided for in
the plans and their annexes, including appendices, whether identified
generically or specifically.
13. For Governments of suppliers, their notification obligations shall be
limited to the items and technologies that are specifically identified. 3/
The annexes also identify items the export of which to Iraq is prohibited
under the Security Council's resolutions. The procedures to be followed in
respect of such items are contained in paragraphs 24 and 25 below.
14. Standardized export/import notification forms shall be made available
by the Commission and IAEA to Governments. Supplementary information and
clarifications regarding completion of the forms and other aspects of the
monitoring regime shall be provided by the Commission and IAEA to
Governments in circular notes of an advisory character. These notes shall
be used to give, for example, details on the practical implementation of
the mechanism, such as the timing for submission of notifications.
15. Should experience over time demonstrate the need, or new technologies
so require, the annexes may be amended in accordance with the plans, after
appropriate consultations with interested States and, as laid down in the
plans, notification to the Security Council.
III. CHARACTERISTICS OF THE MECHANISM
16. Resolution 715 (1991) foresees a unified monitoring mechanism, under
the Security Council. A single address for communications from
Governments, including the completed notification forms, would greatly
simplify the task of Governments. A joint unit, constituted by the
Commission and IAEA, shall be established at United Nations Headquarters in
New York, where the largest number of Governments are represented. This
Unit shall receive, for action by the Commission or IAEA, as the case may
be, all communications from Governments. Action by the Commission and IAEA
shall be coordinated closely, especially where the items concerned come
under the provisions of both plans for ongoing monitoring and verification,
and any following correspondence on such items shall be shared between the
Commission and IAEA. The notifications Iraq is required to submit shall be
delivered to the Baghdad Monitoring and Verification Centre, which shall
serve both the Commission and IAEA, for onward transmission to the Joint
Unit in New York.
17. In all relevant areas, a comprehensive exchange of information between
the Commission and IAEA shall take place. The capability to draw on the
resources of the Commission and IAEA in their respective spheres of
competence may be essential, in certain instances, for the determination of
the potential uses of a particular item subject to notification and thus of
its correct characterization under the plans and the mechanism. It is
important that the Commission and IAEA have this independent capability in
order to avoid any possible claims of partiality. In a similar vein,
recognizing that information provided in notifications may, in certain
instances, be proprietary and sensitive for commercial reasons, the
information provided shall be treated as confidential and restricted to the
Commission and IAEA, to the extent that this is consistent with their
respective responsibilities under Security Council resolution 715 (1991),
other relevant resolutions and the plans.
18. The information provided shall be stored both manually and
electronically and collated with other information derived from inspections
and declarations, in order to assess the extent of Iraq's compliance. It
is important for implementation of the overall monitoring process as it:
(a) Provides information on denied exports, thereby acting as a means of
identifying possible proscribed activities;
(b) Allows inspectors to tag notified equipment as it is imported into
the country;
(c) Allows inspectors to verify the location of imported materials;
(d) Alerts inspectors to the locations of new facilities relevant to
monitoring;
(e) Monitors the quantities of materials imported, in order to identify
any increase in import which may be out of proportion to commercial and
other non-proscribed requirements.
The information shall also provide an essential tool for the designation of
sites, facilities, activities, materials and other items in Iraq for
inspection purposes.
19. The notification procedure must be swift and, as far as possible,
while being consistent with the terms set down by the Security Council, not
impede Iraq's legitimate right to import or export items for non-proscribed
uses. To that end, these notification forms shall apply to transactions
involving any type of reportable item (dual-use items or proscribed and
non-proscribed dedicated-use items, as determined under the Council's
resolutions). Two separate sets of forms are envisaged; one for Iraq to
complete and the other for the Government of the supplier to complete.
Each transaction shall have a unique designator number assigned by the
Joint Unit, to be used where available in all correspondence. This
obviates the requirement to repeat information. Substantive changes to
earlier statements shall be transmitted to the Joint Unit by Iraq and the
Government of the supplier as those changes become known to them.
20. Each form shall be in two parts, with an acknowledgement section.
Iraq should facilitate the process by filing notifications as early as
possible in the transaction. The onus shall be on Iraq to ensure that a
supplier understands its part in the notification process. In this regard,
Iraq shall inform the supplier of the unique designator number assigned by
the Joint Unit on the basis of Iraq's initial notification. This would
help to avoid confusion arising, for example, from differing descriptions
of the exported item by Iraq and by the supplier.
21. The forms themselves shall be developed by the Commission and IAEA,
bearing in mind standardized international practice in respect of commodity
description and coding in international trade. The forms shall be
available in English and French and shall be submitted to the Joint Unit in
either one of these languages so as to facilitate and expedite the
processing of the forms.
22. In order to facilitate the work of the Joint Unit and monitoring
inspections, Iraq shall maintain files with the relevant documentation
(e.g. contracts, shipping documents, letters of credit, etc.) for imports
of all items subject to notification by it. These files shall be available
to the Commission or IAEA, as the case may be, upon request. Full files
shall be kept at the points of entry and by the Iraqi National Monitoring
Directorate. Copies of relevant documentation shall accompany each item as
it is transported between its point of entry and the site of end-use.
Relevant technical documentation shall also be available at the end-use
site for inspection by the Commission or IAEA, as the case may be.
23. In the event that a difference arises between the Commission or IAEA
and the Government of a supplier on whether a particular export is subject
to notification, or whether it is prohibited under the plans or on any
other substantive matter arising in the course of implementing the
mechanism, every effort shall be made to settle the difference through
confidential consultations between the Commission or IAEA, on the one hand,
and the Government, on the other. In the event that such consultations do
not resolve the difference, the matter may be referred by the Commission or
IAEA, or the Government concerned, to the Security Council or the Sanctions
Committee, as appropriate.
IV. SPECIAL CASES
24. The Commission's plan for ongoing monitoring and verification
identifies items, the acquisition of which by Iraq is prohibited save for
certain limited exceptions 4/ with respect to which Iraq must obtain prior
consent from the Commission. Where such consent is obtained, Iraq must
communicate that consent to the supplier, to be attached to the
notification by the Government of the supplier referred to in paragraph 9
above. A special case relates to the emergency import of vaccines, where
such import by Iraq may take place with simultaneous notification to the
Commission. In such circumstances, the Commission shall notify the
supplier, the name of which must be provided to the Commission by Iraq in
its simultaneous notification, of its consent. In cases where these
requirements are not met, Governments shall be obliged to provide to the
Joint Unit, referred to in paragraph 16 above, any information notified to
them, by a supplier located on their territories, concerning attempts by
Iraq to acquire from that supplier items prohibited under the plans.
Governments will be encouraged also to provide any other information they
may have on such attempts.
25. The IAEA plan for ongoing monitoring and verification, as approved by
the Security Council, requires both Iraq and exporting States to secure
prior approval from IAEA or the Sanctions Committee, as the case may be, of
transfers to Iraq, in particular prior to the lifting of sanctions. 5/
Once sanctions are lifted, these provisions would be superseded by this
mechanism.
26. Attempts might be made to supply Iraq with items subject to the plans
in total circumvention of the mechanism. In this respect, Governments may
have at their disposal national information concerning unauthorized exports
to Iraq which should have been notified under the mechanism. The
Commission and IAEA shall exercise their rights, under the relevant
Security Council resolutions and the plans, to conduct no-notice on-site
inspections at any Iraqi point of entry or elsewhere in Iraq and to require
Iraq, where necessary, to impound items until such time as the unopened
consignment can be inspected.
27. There may also be attempts to supply Iraq with such items
clandestinely through transshipment. By this method, goods could leave the
country of origin without the supplier showing Iraq as the final
destination. Goods under transshipment are usually deemed for customs
purposes to be transit goods; they are not considered to have been imported
into the country of transshipment. In order to close this possible
loophole, the country of transshipment shall take action in the event that
it receives information that Iraq has become indicated as the final
destination after the goods were exported from their country of origin.
Where this has occurred, the transshipment country shall notify the Joint
Unit of all shipments of such items.
28. Where it comes to the attention of a Government that the destination
of goods subject to notification, which are located in a bonded warehouse
on its territory, has been changed to Iraq, that Government shall inform
the Joint Unit accordingly.
29. Data available to the Commission and to IAEA may, in some cases,
indicate that Iraq is importing dual-use items in amounts in excess of that
required for non-proscribed internal consumption or export. Likewise, such
data may indicate the import of items of a quality and nature that is not
justified for use in Iraq's non-proscribed programmes. In such cases the
Commission and IAEA, shall, in the first instance, inform the Government of
Iraq, through the Joint Unit, of its findings and call upon it to cease
entering into any arrangements for procurement of these items. Thereafter,
the Joint Unit shall, by a circular note to all States, recommend that they
not enter into any new commitments to provide Iraq with the items in
question until further notice. Should it prove necessary and in order to
decide upon appropriate measures, the Commission or IAEA, as appropriate,
shall enter into confidential consultations with the Governments of
suppliers with outstanding contracts to provide such items.
Notes
1/ Both the Commission's and IAEA's plans, however, envisage special
cases where the import by Iraq of clearly defined items requires prior
consent; see paras. 24 and 25.
2/ Any entity involved in a transaction covered by the mechanism which
becomes aware that the ultimate destination of a controlled item is Iraq.
3/ These items and technologies are identified in the March 1995
revision of the annexes to the Commission's plan as follows: chemical, in
paras. 1, 2, 10, 12 and 13 of annex II; biological, in the appendix to
annex III; and, missiles, in paras. 1 and 2 of annex IV. In the nuclear
area, they are identified in the March 1995 revision of annex III of the
IAEA plan. If, in the future, the annexes are revised, in accordance with
the procedures in para. 15 of the present report, and such revisions
involve a renumbering of the paragraphs just indicated, the renumbering
will be communicated to all States by means of a circular note.
4/ See S/22871/Rev.1, sect. C, Provisions related to chemical items,
para. 32, and sect. D, Provisions related to biological items, para. 38.
5/ See S/22872/Rev.1 and Rev.1/Corr.1, Introduction, para. 9, and sect.
C, Obligations of Iraq, paras. 23, 25 and 26.
Annex II
Letter dated 17 July 1995 from the Executive Chairman of
the United Nations Special Commission addressed to the
Chairman of the Security Council Committee established
by resolution 661 (1990) concerning the situation
between Iraq and Kuwait
I have the honour to refer to the proposal for the mechanism for
export/import monitoring under paragraph 7 of Security Council resolution
715 (1991), which has been submitted to the Sanctions Committee by the
Special Commission and by the International Atomic Energy Agency (IAEA),
and which is currently under consideration by it. In connection with that
proposal, certain delegations have requested information on the modalities
that will be followed by the Special Commission and IAEA in Iraq when
implementing that mechanism in Iraq.
The Security Council has, on a number of occasions, confirmed that sole
responsibility for carrying out their mandates in Iraq rests with the
Special Commission and IAEA (e.g., statement to the press by the President
of the Council of 24 September 1991 and statement by the President of the
Council of 28 February 1992 (S/23663)). Nevertheless, the Commission and
IAEA have kept the Council fully informed of their activities and their
modus operandi. In keeping with this practice, it may be useful to
indicate the general principles that would be followed in implementing the
mechanism in Iraq.
An Office of export/import specialists will be established in the Baghdad
Monitoring and Verification Centre and will serve as an administrative
clearing-house for communications from Iraq regarding the notification
forms that it is required to submit. This Office and the Centre will also
implement inspections within Iraq to ensure that the mechanism is being
complied with. These inspections will be as vigorous as is necessary to
ensure that no violations of the export/import regime occur. In this
regard, the Commission and IAEA intend to rely on their full rights under
the relevant Security Council resolutions, including resolutions 687
(1991), 707 (1991) and 715 (1991), the plans for ongoing monitoring and
verification (S/22871/Rev.1 and S/22872/Rev.1 and Rev.1/Corr.1), the
privileges and immunities as set forth in the exchange of letters between
the United Nations and Iraq of 6 and 17 May 1991 and the decision to be
taken by the Security Council approving the mechanism.
Inspections under the mechanism will take place not only at the declared
end-user sites, where notified items will be tagged, as appropriate, and
entered into the site protocols, but will also be conducted anywhere else
in Iraq where there is reason to believe that notified items or dual-use
items in respect of which there should have been notification may be found.
To ensure Iraqi compliance, the monitoring will be carried out in whatever
ways yield the most effective results, whether by monitoring end-user
sites, or border crossings or other locations. For example, if information
available to the Commission and experience proves this to be effective, the
Commission may station its personnel at key points, including points of
entry and of customs inspection in Iraq. The extent to which various
inspection rights will be exercised in Iraq will depend, inter alia, on the
degree of Iraqi cooperation in carrying out the mechanism and the findings
of the Commission and IAEA regarding the Iraqi customs and import
procedures.
I believe that, when the Sanctions Committee is in a position to forward
the proposal for the mechanism to the Security Council, as the tripartite
proposal called for in paragraph 7 of resolution 715 (1991), it should be
accompanied, for purposes of information, by this letter setting out, in
general terms, the modalities which it is intended will be followed in
implementing the mechanism.
(Signed) Rolf EKEUS
Executive Chairman of the
United Nations Special
Commission
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