Rolling Text (9th Session) : Annex D III

The Biological and Toxin Weapons Convention (BTWC) Database

Rolling Text (9th Session) : Annex D III - IV

Annex D III - IV of the Rolling Text is provided below. This material is from the 9th Session of the Ad Hoc Group of States Parties to the Convention.

Please note: the page numbers given are those which appear in the original text, these appear at the top of the page. The detailed footnotes are provided at the end of the main text.

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BWC/AD HOC GROUP/39
Annex 1
page 174

III. [FACILITY INVESTIGATIONS] [INVESTIGATIONS OF ANY OTHER ALLEGED BREACH OF OBLIGATIONS UNDER THE PROVISIONS OF THE CONVENTION]

(A) INVESTIGATION REQUEST

Information to be submitted with a request for a [Facility investigation] [Investigation
of any other alleged breach of obligations under the provisions of the Convention]¹²⁵

1. Information to be submitted with a request for a [Facility investigation] [Investigation of any other alleged breach of obligation under the provisions of the Convention]:

[(a) [Name of the State Party in whose territory or under whose jurisdiction or control the non-compliant activity has allegedly taken place;] [The State Party to be investigated;]]

(b) Information, [to the extent possible,] on the [use,] [research,] development, production, stockpiling, acquisition or retention [indicating specifically] [which prohibited activity took place] [the specific event, or series of events, which gave rise to a non-compliance concern] of:

(i) Microbial or other biological agents or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;

(ii) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict;

(c) The location [and area] of any alleged non-compliant activity. This shall include as much detail as possible including a description, the location, boundaries and geographic coordinates, specified to the nearest second, if possible;

(d) The approximate period during which the non-compliant activity or event is alleged to have taken place;

[(e) Information from and/or the outcome or results of [any] prior consultations/ clarifications [or prior field investigation] [or prior investigation of the alleged use of biological weapons] relevant to the request;]

[(f) Information to demonstrate that the non-compliance concern is not a natural outbreak of disease.]

BWC/AD HOC GROUP/39
Annex 1
page 175

2. The following other types of information could also be important:

(g) Whether any facility concerned has been declared under the Protocol; and any information included in or absent from the declaration return relevant to the allegations;

(h) If not, any information to suggest that the facility concerned should have been declared under the Protocol;

(i) Details of the ownership and/or operation of the facility concerned;

(j) Any additional relevant information, e.g. on extent and nature of the alleged non-compliant activity;

[(k) Requests for specific assistance, if applicable.]

Identification of the [site] [facility] [location] under investigation

3. The [facility] [site] [location] identified for investigation by the requesting State Party shall be delineated as precisely as possible by providing a site diagram of the requested [facility] [site] [location] related to a reference point, with geographic coordinates specified to the nearest second if possible. [If possible,] the requesting State Party shall also provide [a general indication of] a map delineating the [facility] [site] [location] to be investigated, which shall also include the requested perimeter.

[4. The [requested] perimeter shall:

(a) Where possible, run at least [10] metres outside any buildings or other structures;

(b) Not cut through existing security enclosures; and

(c) Where possible, run at least [10] metres outside any existing security enclosures that the requesting State Party wishes to include within the [requested] perimeter.]

5. If the [requested] perimeter does not conform with the specifications of paragraph 4, it shall be re-drawn by the investigation team in consultation with the State Party to be investigated [to ensure that it conforms with that provision] [in order to enable the investigation team to fulfil its mandate]. [When the [requested] perimeter does conform with the above provisions the investigation team shall accept it as the perimeter for the investigation.]

[6. If the perimeter is not agreed to by the State Party to be investigated, the procedures contained in paragraphs 21 to 26 shall apply for determining a final perimeter. ]

BWC/AD HOC GROUP/39
Annex 1
page 176

Investigation mandate

7. The mandate for a [Facility investigation] [Investigation of any other alleged breach of obligations under the Convention] shall contain at least:

(a) The name of the State Party or Host State Party on whose territory the investigation will take place;

(b) The non-compliance concern that gave rise to the investigation request;

(c) The location and requested perimeter of the investigation site specified on a map, taking into account all information on which the request was based;

(d) The names of the leader of and of the other members of the investigation team;

[(e) The name of the proposed observer if any;]

(f) The list of approved equipment to be used on the investigation [site] [area];

(g) Any specific operational instructions;

[(h) The decision of the [Executive Council] [politically representative body of States Parties] on the investigation request;]

(i) Point of entry to be used by the investigation team.

Notification of investigation

[8. The Director-General shall, not less than [12] [36] [48] hours before the planned arrival of the investigation team at the point of entry, inform the [politically representative body of States Parties] [Executive Council] about the location of the requested facility as specified in paragraphs ... and ... . At the same time, he or she shall also transmit the request to the State Party to be investigated, including the [precise] location of the [facility] [site].]

9. The State Party to be investigated shall acknowledge receipt of the notification of an investigation not later than [1] [2] [hour[s]] [days] after receipt of such a notification.

10. The notification made by the Director-General pursuant to Article III, paragraph ..., shall include, inter alia:

(a) Name of the State Party or Host State Party on whose territory the [Facility investigation] [Investigation of any other alleged breach of obligations under the Convention] will take place;

BWC/AD HOC GROUP/39
Annex 1
page 177

(b) The name and location of the facility to be investigated;

(d) The date and estimated time of arrival of the investigation team at the point of entry;

[(e) If appropriate, the standing diplomatic clearance number for non-scheduled aircraft;]

(f) The names of the leader and of the other members of the investigation team;

[(g) The investigation mandate.]

Duration of an investigation

11. The period of the investigation shall not exceed [84] hours, unless extended by agreement with the investigated State Party. [The period of investigation means the period from ... until ... .]

(B) PRE-INVESTIGATION [PROCEDURES] [ACTIVITIES]

Appointment of investigation team

[12. Upon receipt of a request for a [Facility investigation] [Investigation of any other alleged breach of obligations under the Convention] by a State Party, the Director-General shall [request the [SSC] [[Technical] Secretariat] to] identify members for appointment to the investigation team according to the specific nature of the facility and the nature of the non-compliance concern to be investigated [for possible dispatch within 24 hours]. The size of the investigation team shall be kept to the minimum necessary for the proper fulfilment of the investigation mandate, [but shall not in any event exceed [...] persons].]

[13. The Director-General shall appoint the leader of the investigation team from the permanent staff of the [SSC] [[Technical] Secretariat], other members of the investigation team shall be appointed by the Director-General and may be drawn from the permanent staff [as well as the part time staff] of the [SSC] [[Technical] Secretariat] as designated according to the procedures set out in Annex D, paragraphs 1 to 12.]

[14. The Director-General may extend the size of the investigation team when necessary and in agreement with the investigated State Party.]

BWC/AD HOC GROUP/39
Annex 1
page 178

Monitoring of site

[15. Not later than [12] hours after [the arrival of the investigation team at the point of entry] [its notification], the State Party to be investigated shall begin collecting factual information of all vehicular exit activity from all exit points for all land, air and water vehicles of the investigated site's perimeter. This obligation may be met by collecting factual information in the form of traffic logs, photographs or video recordings.]

[16. Upon the investigation team's arrival at the site under investigation, it shall have the right to begin implementing exit monitoring procedures in order to secure the site. Such procedures shall include: the identification of vehicular exits, the making of traffic logs, the taking of photographs, and the making of video recordings of exits and exit traffic by the investigation team. The investigation team has the right to go, under escort, to any other part [of] [within] [along] the perimeter to check that there is no other exit activity.]

[17. All activities for securing the site and exit monitoring shall take place within a band around the outside of the perimeter, where possible not exceeding [50] meters in width, measured outward.]

[18. The investigation team has the right to inspect on a managed access basis vehicular traffic exiting the site. The State Party to be investigated shall make every reasonable effort to demonstrate to the investigation team that any vehicle, subject to inspection, to which the investigation team is not granted full access, is not being used for purposes related to the possible non-compliance concerns raised in the investigation request.]

19. The application of the above procedures may continue for the duration of the investigation, but shall not unreasonably hamper or delay the normal operation of the site.

20. Procedures to monitor a site may include the identification of vehicular entry and exits, the making of traffic logs, the taking of photographs, and the making of video recordings of entrance and exit traffic by the investigation team in accordance with paragraph ... Article III, section F, subsection III.

[Alternative determination of final perimeter

21. The alternative perimeter shall be designated as specifically as possible in accordance with paragraph 26. It shall include the whole of the requested perimeter and shall, as a rule, bear a close relationship to it, taking into account natural terrain features and man-made boundaries. It shall normally run close to the surrounding security barrier if such a barrier exists. The investigated State Party shall seek to establish such a relationship between the perimeters by a combination of at least two of the following means:

BWC/AD HOC GROUP/39
Annex 1
page 179

(a) An alternative perimeter that does not extend to an area significantly greater than that of the requested perimeter;

(b) An alternative perimeter that is a short, uniform distance from the requested perimeter;

22. If the alternative perimeter is acceptable to the investigation team, it shall become the final perimeter and the investigation team shall be transported from the point of entry to that perimeter. If the investigated State Party deems it necessary, such transportation may begin up to [...] hours before the expiry of the time period specified in paragraph ... for proposing an alternative perimeter. Transportation shall, in any case, be completed not later than [...] hours after the arrival of the investigation team at the point of entry.

23. If a final perimeter is not agreed, the perimeter negotiations shall be concluded as early as possible, but in no case shall they continue for more than [...] hours after the arrival of the investigation team at the point of entry. If no agreement is reached, the investigated State Party shall transport the investigation team to a location at the alternative perimeter.

24. If the investigated State Party deems it necessary, such transportation may begin up to [...] hours before the expiry of the time period specified in paragraph ... for proposing an alternative perimeter. Transportation shall, in any case, be completed not later than [...] hours after the arrival of the investigation team at the point of entry.

25. Once at the facility, the investigated State Party shall provide the investigation team with prompt access to the alternative perimeter to facilitate negotiations and agreement on the final perimeter and access within the final perimeter.

26. If no agreement is reached within [...] hours after the arrival of the investigation team at the facility, the alternative perimeter shall be designated the final perimeter.]

Inspection of approved equipment

27. The investigated State Party shall have the right to inspect the equipment of the investigation team, [without prejudice to the prescribed time frames] to ensure that it is properly sealed, appears on the approved list of equipment and conforms to the standards as set out in Appendix ... . The investigated State Party may exclude equipment that is not in [conformity with the investigation mandate or] that has not been approved in accordance with ... .¹²⁶

BWC/AD HOC GROUP/39
Annex 1
page 180

Pre-investigation briefing

28. The investigated State Party shall provide a pre-investigation briefing to the investigation team prior to granting it access, which shall not normally exceed [three] hours [The briefing shall include information concerning the safety regulations in force, including rules of observation and quarantine [, a medical examination of the members of the investigation team and documentary evidence that they have been vaccinated].] [The briefing should wherever possible include a tour of the [investigated] site.] It shall include the scope and a general description of activities of the facility, details of the physical layout and other relevant characteristics of the site, including a map or sketch showing all structures and significant geographic features [, and details of the availability of facility personnel and records]. It may also include an indication of areas the investigated State Party considers sensitive or not related to the purpose of the Convention.

Investigation plan

[29. After the pre-investigation briefing the investigation team shall prepare an initial plan which specifies the activities to be carried out by the team, including the specific areas of the site [, documentation and personnel] to which access is desired, and whether the team intends to divide into subgroups. The investigation team [may] [shall] not divide into [more than [two]] subgroups [, in addition to members of the investigation team responsible for perimeter activities] unless otherwise agreed by the State Party to be investigated. This plan shall be made available to the State Party to be investigated [prior to the commencement of the investigation].]

Time frames for activities

30. The following time frames for specific activities upon arrival of the investigation team shall apply:

(a) Inspection of equipment - not more than [...] hours;

(b) Pre-investigation briefing - not more than [3] hours;

[(c) Investigation plan - not more than [...] hours;]

[(d) Perimeter negotiations - not more than [...] hours.]

31. Activities upon arrival of the investigation team shall not exceed [...] hours.

(D) CONDUCT OF INVESTIGATION

32. The investigated State Party shall have the right, in accordance with the obligation to demonstrate compliance and the right if necessary to protect sensitive information, as set out

BWC/AD HOC GROUP/39
Annex 1
page 181

in paragraphs ... to ... of Article III, section F, subsection III, to take specific measures which may include but are not limited to the following:

(a) Removal of sensitive papers from direct view;

(b) Shrouding of sensitive displays, stores, and equipment;

(d) Logging off of computer systems and turning off data indicating devices;

(e) Using random selective access techniques whereby the team is requested to select a given percentage or number of buildings of their choice to investigate; the same principle can apply to the interior and content of sensitive buildings or documents;

(f) In exceptional cases, limiting the number of team members who have access to certain parts of the site; and limiting the viewing angle;

(g) Limiting the time investigation team members may spend in any area or building, while allowing the team to fulfil its mandate;

(h) The investigated State Party may at any time during the investigation notify products and processes in which it has a proprietary interest in order to help the team respect the investigated State Party's right to safeguard proprietary information. It may request that if a specific piece of information is released to the team, it should be accorded the most stringent protection measures with the Organization.

Implementation by the investigation team of specific on-site activities

33. The investigation team may conduct any of the following activities, in accordance with the principles of managed access set out in paragraphs ... to ... Article III, section F, subsection III, if necessary to protect sensitive information.

Interviewing

[34. The investigation team shall have the right to interview any relevant personnel in the presence of representatives of the investigated State Party, with the purpose of establishing relevant facts. These may include a legal adviser and a senior member of the facility staff. They shall only request information and data which are necessary for the fulfilment of the investigation mandate. They may make use of, but shall not be limited to, questions related to declarations and agreed lists where relevant.

BWC/AD HOC GROUP/39
Annex 1
page 182

35. The investigated State Party shall have the right to object to questions posed to the facility personnel if it deems that those questions are not relevant to the investigation or impinge on sensitive national security or commercial proprietary data. If the investigation team leader nonetheless continues to believe that these questions are relevant and should be answered, he may submit them in writing to the investigated State Party for reply, together with an explanation of their relevance to the investigation. The investigation team may note in its report any refusal by the investigated State Party to permit interviews or to allow questions to be answered and any explanations given.

36. Interviews shall be conducted in such a way as to avoid unduly hindering the work of the facility. The investigation team shall give advance notice of interview requests.]

Visual observation

[37. The investigation team shall have the right to observe visually and investigate any part of the investigation site relevant to its investigation mandate. The items to be so observed shall be chosen by the investigation team.

38. If direct visual observation is not possible because of national security, commercial proprietary or health and safety considerations, the investigated State Party shall provide other means to demonstrate that the area and objects concerned are not used for purposes related to the possible non-compliance concerns raised in the investigation request. These may include, for example, the use of a video camera, photographs or drawings.]

Identification of key equipment

[39. The investigation team shall have the right to investigate and identify equipment at the investigation site. In identifying key equipment, the investigation team shall make use of, but not be limited to, questions related to agreed lists of equipment [or to other agreed criteria for determining the relevance of equipment to strengthening confidence in compliance].

40. The investigation team may also note the size and quantity of equipment on the site, or the absence of any equipment, and compare this with information provided in facility declarations where appropriate.]

[Auditing]

[41. The investigation team shall have the right to examine documentation and records they deem relevant to the conduct of their mission.

42. The investigated State Party shall have the right, in accordance with managed access procedures, to protect documentation and records which it considers confidential for reasons of national security or commercial sensitivity.

BWC/AD HOC GROUP/39
Annex 1
page 183

43. The investigation team shall have the right to request copies of documentation or print-outs of records. Documents and print-outs shall be removed from the site only with the permission of the investigated State Party.

44. The investigation team and the Organization shall treat as confidential all documents and print-outs or records and any other information obtained as a result of access to documentation and records, and shall handle them accordingly.

45. Auditing shall be conducted in such a way as to minimize disruption to the normal work of the facility.

46. The investigated State Party shall provide the investigation team with any information, such as details of national procedures/financial regulations, which may be relevant to the investigation of documents and records.

47. If issues remain unresolved after an investigation which in the opinion of the investigation team could be addressed by specific off-site auditing, the Organization shall have the right to take the matter up with the investigated State Party with a view to exploring means for implementing this measure.]

[Medical examination

48. The investigation team shall have the right to request access to medical and occupational health data. Such records may include, but are not limited to: those indicating the vaccination history and/or immunological status of personnel; accident reports; documents on vaccination, health and safety policies and their implementation; and epidemiological background data. The investigation team shall have the right to request permission to examine clinical samples taken previously by the facility and review any associated analytical data.

49. Access to medical and occupational health data shall be at the discretion of the investigated State Party. The investigated State Party shall, however, endeavour to provide the greatest degree of access possible to such data. The investigated State Party shall have the right, applying managed access as appropriate, to maintain the anonymity of data and take into account any legal, ethical or religious factors. If a request for access to medical and occupational health data is refused, the investigated State Party shall provide a written explanation to the investigation team leader.

50. Medical examination of personnel during an investigation, including the taking of any clinical samples, shall only take place with the express written informed consent of the individual concerned.]

BWC/AD HOC GROUP/39
Annex 1
page 184

Sampling and identification

[51. The investigation team shall have the right to request samples and test these for the presence of specific pathogens or toxins in order to address a specific non-compliance concern.

52. Sampling shall only be used where there is other evidence acquired during the investigation or otherwise available to the investigation team which suggests that sampling might provide significant information. Where possible, specific tests shall be used to focus on specific agents, strains or genes. The intention to conduct such tests shall where possible be included in the investigation mandate.

53. The investigated State Party shall, in accordance with the principles of managed access, have the right to take measures to protect national security and confidential proprietary information such as requiring the use of specific tests or on-site analysis or, if necessary, to refuse a sample. In the latter case the investigated State Party shall be under the obligation to make every reasonable effort to demonstrate that the requested sample concerned is unrelated to the non-compliance activities specified in the investigation request.

54. Representatives of the investigated State Party shall take samples at the request of the investigation team and in their presence. If so agreed, the investigation team may take samples itself. Where possible, samples shall be analyzed on site. The investigated State Party shall receive duplicate samples, for its own analysis. The investigation team may test samples using any methods specifically designed or approved for use in such investigations, and brought to the facility by the investigators. At the request of the investigation team, the investigated State Party shall to the extent possible provide assistance for the analysis of samples on site, using locally available resources. Should it be negotiated that the investigated State Party itself performs analyses, the investigating team may request that this be done in the presence of investigators.

55. If it deems on-site analysis impossible, the investigation team shall have the right to request the removal of samples for analysis in designated laboratories. If the removal of samples is agreed, the investigated State Party shall have the right to accompany the sample and observe any analysis and its subsequent destruction.

56. An investigated State Party shall have the right to offer a reliable sample at any time in order to help resolve a non-compliance concern or any other ambiguity which may arise in the course of the investigation. If it is agreed that such a sample may be removed from the site for analysis in a designated laboratory, a representative from the investigated State Party shall have the right to accompany the sample and observe any analysis and its subsequent destruction.

57. Any sampling and analysis shall be conducted in such a way as to minimize disruption to the normal work of the facility and any consequent loss of production.]

BWC/AD HOC GROUP/39
Annex 1
page 185

Communications

58. The members of the investigation team shall have the right at all times during the investigation to communicate with each other and with the [Technical] Secretariat. For this purpose they may use their own duly approved and certified equipment with the consent of the investigated State Party, to the extent that the investigated State Party does not provide them with access to other telecommunications.

(E) POST-INVESTIGATION [ACTIVITIES] [PROCEDURES]

[Preliminary findings and evaluation] [Initial report]

Final report

59. The report shall [describe] [summarize in a general way] the activities conducted by the investigation team and its factual findings [, particularly with regard to the concerns regarding possible non-compliance with Article I of the BTWC,] and shall be limited to information directly related to these [non-compliance concerns] [findings]. It shall also include an account by the team of the degree and nature of access and cooperation granted to the team and the extent to which this enabled it to fulfil the investigation mandate.

60. A draft final [Facility investigation] [Investigation of any other alleged breach of obligations under the Convention] report shall be made available to the investigated State Party not later than [20] days after completion of the investigation. The investigated State Party shall have the right to identify any information and data not related to the non-compliance concern which in its view, due to its confidential nature, should not be contained in the final version of the report to be circulated to States Parties. [The investigation team shall consider these observations and, using its own discretion, wherever possible adopt them.]

[Further clarification]

BWC/AD HOC GROUP/39
Annex 1
page 186

[IV. [INVESTIGATIONS WHERE THERE IS A CONCERN THAT
A TRANSFER HAS TAKEN PLACE IN VIOLATION OF
ARTICLE III OF THE CONVENTION]

(A) INVESTIGATION REQUEST

(B) PRE-INVESTIGATION [ACTIVITIES] [PROCEDURES]

(D) POST-INVESTIGATION [ACTIVITIES] [PROCEDURES]]

Notes

125. Article III, section F, subsection III, paragraph 18 (a) to (j) text duplicated.

126. A reference to the relevant paragraphs in the General Provisions section of Annex D will be inserted here.

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