AD HOC GROUP OF THE STATES PARTIES TO THE CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION AND STOCKPILING OF BACTERIOLOGICAL (BIOLOGICAL) AND TOXIN WEAPONS AND ON THEIR DESTRUCTION

BWC/AD HOC GROUP/WP.195/Rev.1 16 September 1997 Original: ENGLISH

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 Eighth session
Geneva, 15 September - 3 October 1997

Working Paper submitted by Japan

Proposed Language on Privileges and Immunities

Article IX [Organization] [And Implementational Arrangements]

E. Privileges and Immunities

52. The Organization shall enjoy on the territory and in any other place under the jurisdiction or control of a State Party such legal capacity and such privileges and immunities as are necessary for the exercise of its functions.

53. Delegates of States Parties, together with their alternates and advisers, representatives appointed to the [Executive Council] together with their alternates and advisers, the Director-General and the staff of the Organization shall enjoy such privileges and immunities as are necessary in the independent exercise of their functions in connection with the Organization.

54. The legal capacity, privileges, and immunities referred to in this Article shall be defined in agreements between the Organization and the States Parties as well as in an agreement between the Organization and the State in which the headquarters of the Organization is seated. These agreements shall be considered and approved by the Conference pursuant to Article IX, paragraph ....

55. Notwithstanding paragraphs 54, the privileges and immunities enjoyed by the investigators and investigation assistants during the conduct of investigation activities as well as the waiver procedures of immunities of the investigators and investigation assistants, the other staff of the [Technical Secretariat], the Director-General of the [Technical Secretariat] and the Organization itself in relation to such activities shall be those set forth in Section D 2. of the Annex.

56. Provisions set forth in Section D 2. of the Annex shall apply, when applicable and mutatis mutandis, to the waiver of immunities of the Director-General and the staff of the [Technical Secretariat] and the Organization itself

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in relation to activities of the Organization other than investigation activities.

Annex, Section D Investigations

[General Provisions]

2. Privileges and Immunities

1. Following acceptance of the initial list of investigators and investigation assistants as provided for in paragraph... or as subsequently altered in accordance with paragraph... , each State Party shall be obliged to issue, in conformity with its national visa-related laws and regulations and upon application by an investigator or investigation assistant, multiple entry/exit and/or transit visas and other relevant documents to enable each investigator or investigation assistant to enter and to remain on its territory for the sole purpose of carrying out investigation activities on the investigated State Party. Each State Party shall issue the necessary visa or travel documents for this purpose no later than [48] hours after receipt of the application. Such documents issued by the investigated State Party shall be valid for as long as is necessary to enable the investigator or investigation assistant to remain on its territory for the sole purpose of carrying out the investigation activities.

2. To exercise their functions effectively, investigators and investigation assistants (hereinafter referred to as “members of the investigation team”) shall be accorded by the investigate State Party and the Host State Party privileges and immunities as set forth in subparagraphs (a) to (h). Privileges and immunities shall be granted to members of the investigation team for the sake of the Convention¹ and this Protocol and not for the personal benefit of the individuals themselves. Such privileges and immunities shall be accorded to them for the entire period between arrival on and departure from the territory of the investigated State Party² and Host

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State Party³, and thereafter with respect to acts previously performed in the exercise of their official functions in accordance with their mandate.

(a) The members of the investigation team shall be accorded the same inviolability as is enjoyed by diplomatic agents pursuant to Article 29 of the Vienna Convention on Diplomatic Relations of 18 April 1961.

(b) The living quarters and office premises occupied by the investigation team carrying out investigation activities pursuant to this Protocol shall be accorded the same inviolability and protection as are accorded to the premises of diplomatic agents pursuant to Article 30, paragraph 1 of the Vienna Convention on Diplomatic Relations.

(c) The papers and correspondence, including records, of the investigation team shall enjoy the same inviolability as is accorded to all papers and correspondence of diplomatic agents pursuant to Article 30, paragraph 2 of the Vienna Convention on Diplomatic Relations. The investigation team shall have the right to use codes for their communications with the Technical Secretariat, in accordance with national procedures of the investigation State Party and the Host State Party.

(d) [Samples and] approved equipment carried by members of the investigation team shall be inviolable subject to provisions contained in this Protocol and exempt from all customs duties. [Hazardous samples shall be transported in accordance with relevant regulations.]

(e) The members of the investigation team shall be accorded the same immunities as are accorded to diplomatic agents pursuant to Article 31, paragraphs 1, 2 and 3, of the Vienna Convention on Diplomatic Relations.

(f) The members of the investigation team shall be permitted to bring into the territory of the investigated State Party or Host State Party, without payment of any customs duties or related charges, articles for personal use, with the exception of articles the import or export of which is prohibited by law or controlled by quarantine regulations.

(g) The members of the investigation team shall be accorded the same currency and exchange facilities as are accorded to representatives of foreign Governments on temporary official missions.

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(h) The members of the investigation team shall not engage in any professional or commercial activity for personal profit on the territory of the investigated State Party or the Host State.

3. When transiting the territory of non-investigated State Parties, the members of the investigation team shall be accorded the same privileges and immunities as are enjoyed by diplomatic agents pursuant to Article 40, paragraph 1, of the Vienna Convention on Diplomatic Relations. Papers and correspondence, including records, [and samples] and approved equipment, carried by them, shall be accorded the privileges and immunities set forth in paragraph 2 (c) and (d).

4. Without prejudice to their privileges and immunities the members of the investigation team shall be obliged to respect the laws and regulations of the investigated State Party or Host State and, to the extent that is consistent with the investigation mandate, shall be obliged not to interfere in the internal affairs of that State. If the investigated State Party or Host State Party considers that there has been an abuse of privileges and immunities by the members of the investigation team, consultations shall be held between the State Party and the Director-General of the [Technical Secretariat] to determine whether such an abuse has occurred and, if so determined, to prevent a repetition of such abuse.

5. The Director-General of the [Technical Secretariat] shall have the right and the duty to waive the immunity of any member of the investigation team or the other staff of the [Technical Secretariat] in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the purposes for which the immunity is accorded. In the case of the Director-General, the Executive Council shall have the right and the duty to waive the immunity. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary. Waiver must always be express.

6. In parallel to the procedure set forth in paragraph 5 of this Annex, the Director-General shall consider whether to waive the immunity of the Organization as a body responsible for the acts by the investigation team. The Director-General may waive the immunity of the Organization in any case where, in its opinion, the immunity would impede the course of justice and can be waived without prejudice to the purposes for which the immunity is accorded. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement. The authority to waive the immunity of the Organization from the execution of the judgement shall be vested with the Conference. Waiver must always be express.

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7. In the event of an alleged breach of confidentiality, the Director-General, the Executive Council or the Conference, as specified in paragraphs 5 and 6, depending on the immunity at issue, shall request and pay utmost respect to the opinion of the “Commission for the settlement of disputes related to confidentiality” (hereinafter referred to as “the Commission”) as to whether to waive immunity.

Notes

1 “Convention” means the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction of 1972.

2 “Investigated State Party” means the State Party on whose territory or in any other place under its jurisdiction or control an investigation pursuant to this Protocol takes place, or the State Party whose facility or area on the territory of a Host State is subject to such an investigation.

3 “Host State” means the State on whose territory lie facilities or areas of another State, Party to this Protocol, which are subject to investigation under this Protocol. “Host State Party” means a Host State which is party to this Protocol.