Rolling Text (9th Session) : Annex D I

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Rolling Text (9th Session) : Annex D I - II

Annex D I-II 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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D. INVESTIGATIONS

I. GENERAL PROVISIONS

(A) DESIGNATION OF INVESTIGATION PERSONNEL

1. The personnel of an investigation team shall consist of investigators and, as necessary, [investigation assistants]. [An investigation shall only be carried out by qualified investigators specially designated for this function.] They may be assisted by specially designated [investigation assistants] [, such as technical [and administrative] personnel and interpreters]. [The paramount consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence and integrity.] [Due regard shall be paid also to the importance of selecting investigation personnel on as wide a geographical basis as possible.] [The investigation personnel shall be selected on the basis of equitable geographic distribution.] No national of the requesting State Party or the investigated State Party shall be a member of the investigation team.

[2. Investigation personnel [shall be nominated for designation by the States Parties] on the permanent [or part time staff] of the [Technical] Secretariat on the basis of their expertise and experience relevant to the purpose of investigations of noncompliance concerns. The State Party shall indicate whether a person is proposed for the permanent or part time staff of the [Technical] Secretariat.]

[3. Each State Party, no later than 30 days after the entry into force of this Protocol or accession to the Protocol, shall notify the Director-General of the names, dates of birth, gender, ranks, qualifications and professional experience of the persons proposed by the State Party for designation as investigation personnel.]

4. No later than [60] [30] days after the entry into force of this Protocol, the [Technical] Secretariat shall communicate in writing to all States Parties an initial list of the names, nationalities, dates and places of birth, gender, passport numbers and ranks of the investigation personnel proposed for designation by the DirectorGeneral [and the States Parties], as well as a description of their qualifications and professional experience.

5. Each State Party shall immediately acknowledge receipt of the initial list of investigation personnel proposed for designation. Any investigator or [investigation assistant] included in this list shall be regarded as accepted unless a State Party, no later than 30 days after acknowledgment of receipt of the list, declares its nonacceptance in writing. The State Party may include the reason for the objection. In the case of nonacceptance, the proposed investigator or [investigation assistant] shall not undertake or participate in onsite investigation activities on the territory or in any other place under the jurisdiction or control of the State Party that has declared its nonacceptance. The [Technical] Secretariat shall

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immediately confirm receipt of the notification of non-acceptance [and also inform other States Parties of such objection]. The [Technical] Secretariat shall, as necessary, submit further proposals in addition to the initial list.

6. Whenever additions or changes to the list of investigation personnel are proposed by the DirectorGeneral, replacement investigation personnel shall be designated in the same manner as set forth with respect to the initial list. [Each State Party shall promptly notify the [Technical] Secretariat if an investigator or [investigation assistant] nominated by it can no longer fulfil the duties of investigation personnel.] [Any person designated to be an investigator [or investigation assistant] may withdraw from the list by informing the Director-General in writing.]

7. The [Technical] Secretariat shall keep the list of investigation personnel up to date and notify all States Parties of any additions or changes to the list.

8. Subject to paragraph 9, a State Party shall have the right at any time to object to an investigator or [investigation assistant] who has already been accepted. It shall notify the [Technical] Secretariat of its objection in writing and may include the reason for the objection. Such objection shall come into effect 30 days after receipt of the notification by the [Technical] Secretariat. [The [Technical] Secretariat shall immediately confirm receipt of the notification of the objection and inform the objecting State Party [and nominating States Parties] of the date on which the investigator or [investigation assistant] shall cease to be designated for that State Party.] [The [Technical] Secretariat shall immediately confirm receipt of the notification of the objection and also inform [other States Parties] of such objection. Such objection shall come into effect [30] days after receipt by the [Technical] Secretariat. The [Technical] Secretariat shall immediately inform the State Party concerned of the withdrawal of the designation of the investigator or [investigation assistant].]

9. A State Party that has been notified of an investigation shall not seek the removal from the investigation team of any of the investigation personnel named in the investigation mandate.

10. The number of investigation personnel accepted by a State Party shall be sufficient to allow for availability of appropriate numbers of investigation personnel. If, in the opinion of the DirectorGeneral, the nonacceptance by a State Party of proposed investigation personnel impedes the designation of a sufficient number of investigation personnel or otherwise hampers the effective fulfilment of the purposes of an onsite investigation, the DirectorGeneral shall refer the issue to the [Executive Council].

11. The members of the investigation team carrying out an investigation of a facility or an area of a State Party located on the territory of another State Party shall be designated in accordance with the procedures set forth in this Annex as applied both to the investigated State Party and to the Host State Party.

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[12. Each investigator or [investigation assistant] included in the list of investigation personnel shall receive necessary training. Such training shall be conducted by the [Technical] Secretariat pursuant to the procedures specified in the [Appendix ...]. The [Technical] Secretariat shall coordinate, in agreement with the States Parties offering appropriate training, a schedule of training for the investigators.]^120.

[(B) ACCREDITATION OF LABORATORIES

13. No later than [30] days after entry into force of this Protocol or after the accession of a State Party to the Protocol the [Technical] Secretariat shall communicate to the States Parties the criteria required for the accreditation of laboratories as [set out in Annex H] [determined during the period prior to entry into force].

14. States Parties shall, within ... days after receiving the communication of the criteria for the accreditation of laboratories from the [Technical] Secretariat, nominate laboratories for accreditation.

15. Nominated laboratories shall be accredited by the [Technical] Secretariat and certified by the Director-General in accordance with the process [set out in Appendix ...] [as determined during the period prior to entry into force] [to perform different types of analytical or other functions]. The [Technical] Secretariat shall no later than 30 days after the completion of the accreditation process, communicate a list of all the accredited laboratories to all States Parties.

16. The Director-General may terminate the accreditation of a laboratory on the request of the nominating State Party.

17. Further laboratories may be accredited in accordance with Appendix ... when necessary. The accreditation of each laboratory shall be subject to renewal every ... years.]

18. Following acceptance of the initial list of investigators [and visitors] and investigation [and visit] 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 visitor] or investigation [or visit] assistant, multiple entry/exit and/or transit visas and other relevant documents to enable each investigator [or visitor] or investigation [or visit] assistant to enter

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and to remain on its territory for the sole purpose of carrying out investigation activities [and visits] on the investigated [visited] 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 [visited] State Party shall be valid for as long as is necessary to enable the investigator [or visitor] or investigation [or visit] assistant to remain on its territory for the sole purpose of carrying out the investigation activities [and visits].

19. To exercise their functions effectively, investigators [and visitors] and investigation [and visit] assistants (hereinafter referred to as "members of the investigation [visit] team") shall be accorded by the investigated [visited] State Partyand the Host State Party privileges and immunities as set forth in subparagraphs (a) to (i). Privileges and immunities shall be granted to members of the investigation [visit] team for the sake of 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 [visited] State Party¹²¹and Host State Party¹²², 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 [visit] 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 [visit] team carrying out investigation [visit] 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 [visit] 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 [visit] team shall have the right to use codes for their communications with the [Technical] Secretariat [, in accordance with national procedures of the investigated [visited] State Party and the Host State Party].

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(d) [Samples and] approved equipment carried by members of the investigation [visit] 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 [visit] 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 [visit] team carrying out prescribed activities pursuant to this Protocol shall be accorded the exemption from dues and taxes accorded to diplomatic agents pursuant to Article 34 of the Vienna Convention on Diplomatic Relations.]

(g) The members of the investigation [visit] team shall be permitted to bring into the territory of the investigated [visited] 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.

(h) The members of the investigation [visit] team shall be accorded the same currency and exchange facilities as are accorded to representatives of foreign governments on temporary official missions.

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

20. When transiting the territory of non-investigated [non-visited] States Parties, the members of the investigation [visit] 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 19 (c) and (d).

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

[22. The Director-General shall have the right and the duty to waive the immunity of any member of the investigation [visit] team or the other staff of the [Technical] Secretariat in any

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case where, in his or her opinion, the immunity would impede the course of justice and can be waived without prejudice to [the purposes for which the immunity is accorded] [the implementation of the provisions of this Protocol]. 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] [shall] always be express.]

[23. The immunity from jurisdiction of members of the investigation [visit] team may be waived by the DirectorGeneral in those cases when the DirectorGeneral is of the opinion that immunity would impede the course of justice and that it can be waived without prejudice to the implementation of the provisions of this Protocol. Waiver must always be express.]

[24. In parallel to the procedure set forth in paragraph 22 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 [visit] 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] [the interests of the Organization]. 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] [shall] always be express.]

[25. Observers shall be accorded the same privileges and immunities accorded to investigators [and visitors] pursuant to this section, except for those accorded pursuant to paragraph 19 (d).]

26. In the event of an alleged breach of confidentiality, the Director-General, the [Executive Council] or the Conference, as specified in paragraphs 22 and 23, depending on the immunity at issue, shall request and pay [utmost respect to the opinion] [due regard to the views] of the "Commission for the settlement of disputes related to confidentiality" (hereinafter referred to as "the Commission") as to whether to waive immunity.

(D) STANDING ARRANGEMENTS

Point(s) of entry

27. Each State Party shall designate its point(s) of entry and shall supply the required information to the [Technical] Secretariat no later than 30 days after this Protocol enters into force for it. These point(s) of entry shall be such that the investigation team can reach any investigation area from at least one point of entry within [36] [24] [12] hours. Locations of point(s) of entry shall be provided to all States Parties by the [Technical] Secretariat. Point(s) of entry [may] [shall] also serve as point(s) of exit.

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28. Each State Party may change its point(s) of entry by giving notice of such change to the [Technical] Secretariat. Changes shall become effective 30 days after the [Technical] Secretariat receives such notification, to allow appropriate notification to all States Parties.

29. If the [Technical] Secretariat considers that there are insufficient points of entry for the timely conduct of investigations or that changes to the points of entry proposed by a State Party would hamper such timely conduct of investigations, it shall enter into consultations with the State Party concerned to resolve the problem.

[Access and conduct of investigations involving States other than the State Party to be investigated¹²³

30. In cases where facilities or areas of an investigated State Party are located on the territory of a Host State Party or where the access from the point of entry to the facilities or areas subject to investigation requires transit through the territory of another State Party, the investigated State Party shall exercise the rights and fulfil the obligations concerning such investigations in accordance with this [Annex] [Protocol]. The Host State Party shall facilitate the investigation of those facilities or areas and shall provide for the necessary support to enable the investigation team to carry out its tasks in a timely and effective manner. States Parties through whose territory transit is required to investigate facilities or areas of an investigated State Party shall facilitate such transit.

31. In cases where facilities or areas of an investigated State Party are located on the territory of a State not party to this Protocol, the investigated State Party shall take all necessary measures to ensure that investigations of those facilities or areas can be carried out in accordance with the provisions of this [Annex] [Protocol]. A State Party that has one or more facilities or areas on the territory of a State not party to this Protocol shall take all necessary measures to ensure acceptance by the Host State of investigators and investigation assistants designated to that State Party. If an investigated State Party is unable to ensure access, it shall demonstrate that it took all necessary measures to ensure access.

32. In cases where the facilities or areas sought to be investigated are located on the territory of a State Party, but in a place under the jurisdiction or control of a State not party to this Protocol, the State Party shall take all necessary measures as would be required of an investigated State Party and a Host State Party [[without prejudice to] [consistent with] the rules and practices of international law] to ensure that investigations of such facilities or areas can be carried out in accordance with the provisions of this [Annex] [Protocol]. If the State Party is unable to ensure access to those facilities or areas, it shall demonstrate that it took all necessary measures to ensure access [[without prejudice to] [consistent with] the rules and practices of international law]. This paragraph shall not apply where the facilities or areas sought to be investigated are those of the State Party.

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33. In cases where the investigation is related to paragraphs 30, 31 and 32, the Director-General shall notify the States directly involved in accordance with Annex D paragraph ... .]

Arrangements for use of nonscheduled aircraft

34. Where timely travel to the point of entry is not feasible using scheduled commercial flights, an investigation team may utilize nonscheduled aircraft. No later than 30 days after this Protocol enters into force for it, each State Party shall inform the [Technical] Secretariat of the [standing] diplomatic clearance number for nonscheduled aircraft or appropriate procedures and measures to facilitate the arrival and handling of non-scheduled aircraft transporting an investigation team and equipment necessary for investigation. Aircraft routings shall be along established international airways that are agreed upon between the State Party and the [Technical] Secretariat as the basis for such procedures.

[35. When a non-scheduled aircraft is used, the [Technical] Secretariat shall provide the investigated State Party with the proposed flight plan [, through the National Authority,] for the aircraft's flight from the last airfield prior to entering the airspace of the State in which the investigation site is located to the point of entry, not less than [6] hours before the scheduled departure time from that airfield. Such a plan shall be filed in accordance with the procedures of the International Civil Aviation Organization applicable to civilian aircraft. For its owned or chartered flights, the [Technical] Secretariat shall include in the remarks section of each flight plan the [standing] diplomatic clearance number or details concerning the appropriate procedures and measures to facilitate the arrival of the non-scheduled aircraft and the appropriate notation identifying the aircraft transporting the investigation team and equipment necessary for the investigation.]

[36. Not less than three hours before the scheduled departure of the investigation team from the last airfield prior to entering the airspace of the State in which the investigation is to take place, the investigated State Party or Host State Party shall ensure that the flight plan filed in accordance with paragraph ... is approved so that the investigation team may arrive at the point of entry by the estimated arrival time.]

[37. The investigated State Party shall provide parking, security protection, servicing and fuel as required by the [Technical] Secretariat for the aircraft of the investigation team at the point of entry when such aircraft is owned or chartered by the [Technical] Secretariat. Such aircraft shall not be liable for landing fees, departure tax, and similar charges. The [Technical] Secretariat shall bear the cost of such fuel, security protection and servicing.]

Administrative arrangements

38. The investigated State Party shall provide or arrange for the amenities necessary for the investigation team such as transport, communications means, interpretation, working space, lodging, meals and medical care. In this regard, the investigated State Party shall be

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reimbursed within ... days by the Organization for all such costs incurred by the investigation team.

[Approved investigation equipment

39. The approved investigation equipment for use during on-site investigations [,which shall be commercially available to all States Parties of the Protocol] [as well as the specifications for the use of this equipment] is set out in Appendix ... . These specifications shall take account of safety and confidentiality factors bearing in mind the type of location where such equipment could be used. [The Conference, at its initial session, shall approve the list of equipment for use during [each specific type of] investigations.]

40. The [Technical] Secretariat shall, as appropriate, update the list of equipment [for each specific type of investigation]. The updated list shall be considered and approved by the Conference.

41. The [Technical] Secretariat shall ensure that all types of approved equipment are available for onsite investigations when required. When required for an onsite investigation, the [Technical] Secretariat shall duly certify that the equipment has been calibrated, maintained and protected. To facilitate the checking of the equipment at the point of entry by the investigated State Party, the [Technical] Secretariat shall provide documentation and attach seals to authenticate the certification.

42. Any permanently held equipment shall be in the custody of the [Technical] Secretariat. The [Technical] Secretariat shall be responsible for the maintenance and calibration of such equipment.

43. Subject to paragraph 44, there shall be no restriction by the investigated State Party on the investigation team bringing into the investigation site such equipment on the list which the [Technical] Secretariat has determined to be necessary to fulfil the investigation requirements.

The investigation team shall take into account local regulations having an effect on the use of specific pieces of equipment when such equipment is being used during an investigation. The State Party to be investigated shall include the details of such regulations in the pre-investigation briefing.

44. The investigated State Party shall have the right, without prejudice to the prescribed time frames, to inspect the equipment in the presence of investigation team members at the point of entry, i.e., to check the identity of the equipment brought in or removed from the territory of the investigated State Party or the Host State. To facilitate such identification, the [Technical] Secretariat shall attach documents and devices to authenticate its designation and approval of the equipment. The investigation of the equipment shall also ascertain to the satisfaction of the investigated State Party that the equipment meets the description of the approved equipment specified in the mandate for the particular type of investigation. The investigated State Party has the right to exclude equipment not meeting that description or

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equipment without the above-mentioned authentication documents and devices. Procedures for the inspection of equipment shall be considered and approved by the Conference pursuant to Article IX, paragraph 24 (h).

[45. As appropriate, the [Technical] Secretariat shall make arrangements with States Parties to provide equipment mentioned in the list. Such States Parties shall be responsible for the maintenance and calibration of such equipment.]

46. In cases where the investigation team finds it necessary to use equipment available on site not belonging to the [Technical] Secretariat and requests the investigated State Party to enable the team to use such equipment the investigated State Party shall comply with the request to the extent it can. The investigation team shall have the right to observe and confirm the calibration of such equipment. The State Party shall be reimbursed for the cost of making the equipment available [and for its calibration].

(E) PRE-INVESTIGATION ACTIVITIES

Assignment of investigation team

47. [[Upon receipt of a request for an investigation by a State Party,] the Director-General shall determine the size of the investigation team and select its members [[on] [as equitable and] as wide a geographic basis [as possible]] taking into account the [circumstances] [and specific nature] of the particular request [and alert them for [possible] dispatch within [24] hours].] [In addition to the necessary qualifications, due regard shall be paid also to the importance of selecting investigation personnel on as wide a geographical basis as possible.] Members of the investigation team may be selected from the [list of experts] [part-time staff of the STS of the [Technical] Secretariat] when in the view of the Director-General expertise, not available among the permanent staff is required for the proper conduct of the investigation. 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. The Director-General may extend the size of the investigation team when necessary and in agreement with the investigated State Party. No national of the requesting State Party or the State Party to be investigated shall be a member of the investigation team.

[Observer

48. The requesting State Party may, subject to the agreement of the State Party to be investigated, send a representative who may be a national either of the requesting State Party or of a third State Party, to observe the conduct of an investigation.

49. The State Party to be investigated shall notify its acceptance or non-acceptance of the proposed observer to the Director-General.

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50. The State Party to be investigated [may] [shall [in principle]], accept the proposed observer, but if the State Party to be investigated exercises a refusal, that fact shall be recorded in the final report.

51. The requesting State Party shall liaise with the [Technical] Secretariat to coordinate the arrival of the observer at the same point of entry as the investigation team within a reasonable period of the investigation team's arrival.

[52. The observer shall have the right throughout the period of investigation to be in communication with the embassy or other official representation of the requesting State Party located in the investigated State Party, or in the case of absence of an embassy or other official representation, with the requesting State Party itself. The investigated State Party shall provide means of communication to the observer.]

53. The observer shall have the right to arrive at the investigation area and to have access to and within the investigation area as granted by the investigated State Party.

54. The observer shall have the right to make recommendations to the investigation team, which the team shall take into account to the extent it deems appropriate. Throughout the investigation, the investigation team shall keep the observer informed about the conduct of the investigation and the findings.

55. Throughout the investigation, the investigated State Party shall provide or arrange for the amenities necessary for the observer similar to those enjoyed by the investigation team as described in paragraph 38. All costs in connection with the stay of the observer on the territory of the investigated State Party, shall be borne by the requesting State Party.]

Dispatch/arrival of investigation team

56. The Director-General shall dispatch an investigation team as soon as possible after an investigation request has been received [in accordance with the provisions in ...] [and approved in accordance with agreed screening procedures]. The investigation team shall arrive at the point of entry specified in the request in the minimum time possible consistent with agreed procedures for the notification and review of requests.

[57. The Director-General may, when necessary, dispatch an element of the investigation team earlier than the rest, if the time period for the deployment of the full team cannot be achieved simultaneously. The rest of the team may join the initial element at any stage of the specified period of the investigation.]

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(F) POST-INVESTIGATION ACTIVITIES

Preliminary findings

58. Upon completion of the investigation, the investigation team shall meet with the investigated State Party to review the team's preliminary findings and to clarify any remaining ambiguities. The team shall provide to the investigated State Party its preliminary findings in written form [having taken into account the provisions of the Confidentiality Annex], together with a list and copies of written information and data gathered and other material intended to be taken off site; and any samples proposed to be removed from the site. This document shall be signed by the team leader. In order to indicate that the investigated State Party has taken notice of the contents of the initial findings, the representative of the investigated State Party shall countersign the document. This meeting and these procedures shall be completed not later than [24] hours after completion of the investigation.

59. In accordance with [the applicable principles of managed access and] the detailed provisions set out above, [and without prejudice to the obligation of the investigated State Party to allow the investigation team to fulfill its mandate] the investigated State Party may [place restrictions] [request that restrictions be placed] on [or deny altogether] the removal of specific samples, documents or other materials, if [it deems this] necessary to protect commercial proprietary or national security information. The investigated State Party may also draw to the attention of the investigation team any information in the preliminary findings which, in its view, is unrelated to the investigation mandate. In these cases the investigated State Party may request that the information be considered confidential. In such cases the investigated State Party shall have the right to [request] [ensure] that such information is deleted.

Departure

60. Upon completion of the post-investigation activities, the investigation team and the [observer] shall leave the territory of the investigated State Party as soon as possible. The investigated State Party shall do everything in its power to provide assistance and to ensure the safe conduct of the investigation team, equipment and baggage to the point of exit. Unless agreed otherwise by the investigated State Party and the investigation team, the point of exit shall be the same as the point of entry used.

(G) MEASURES TO GUARD AGAINST ABUSE DURING AN INVESTIGATION

61. [Investigations under this Protocol shall be carried out strictly in accordance with the provisions of ... .] In carrying out the investigation in accordance with the investigation mandate, the investigation team shall use only those [agreed] methods necessary to provide sufficient relevant facts to clarify the concern about possible noncompliance described in the investigation mandate and shall refrain from activities not relevant thereto.

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62. It shall collect and document such facts as are related to the possible noncompliance concern described in the investigation mandate but shall neither seek nor document information which is clearly not related thereto, unless the investigated State Party expressly requests it to do so. Any material collected and subsequently found not to be relevant shall not be retained.

[63. Investigators shall, in accordance with the relevant rules laid down in international law, be liable to physical or juridical persons for any intentional or accidental damage resulting from unlawful actions on their part, including the leaking of confidential information that becomes known to them in the course of investigation work.]

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II. [FIELD INVESTIGATIONS] [INVESTIGATIONS OF ALLEGED USE OF BW]

(A) INVESTIGATION REQUEST

Information to be submitted with a request for a [Field investigation] [Investigation of alleged use of BW]¹²⁴

1. Requests for [Field investigations] [Investigations of alleged use of BW] shall include [enough of the following [precise] information to support a prima facie case of a non-compliance concern] [to the extent possible] [the following [precise] information]:

[(a) Name of the State Party in whose territory or under whose jurisdiction or control the alleged [event] [use] has taken place;]

(b) [Approximate] date [and] time [and duration] of the alleged [event];

(c) The location, geographic coordinates and the characteristics of the area(s) involved [, whether the area is on the territory of the requesting State Party, and if not, the name of the State who controls that territory as well as whether that State is a State Party to the Protocol and/or the Convention];

(d) [Aided by epidemiological data,] a description of the circumstances under which the [event] [use] took place, a description of the [event] [use] itself as well as an indication of whether it was a single [event] [use] or a series of [events] [uses]. An indication of the suspected cause and/or perpetrator of the [event] [use];

[(e) The victims (humans, animals or plants), the effects on them and the number affected. Symptoms and signs of the disease [or similar occurrence caused by toxins] [or other physical evidence] [, the treatment and the results of the treatment of the victims] shall be described;]

(f) Information [to the extent possible] on:

(i) The [use] [release] of microbial or other biological agent(s) or toxin(s) for other than peaceful purposes;

(ii) The use of weapons, equipment or means of delivery;

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[(g) Any epidemiological data substantiating an allegation why the event shall not be considered to be a natural outbreak of disease [including data on natural disease profiles and occurrences in the area affected, as well as demographic data];]

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

[(i) Information from and/or the outcome or results of [any] prior consultations/ clarifications relevant to the request.]

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

(j) Reports of any internal investigation including results of any laboratory investigations;

[(k) The victims (humans, animals or plants), the effects on them and the number affected; symptoms and signs of the disease [or similar occurrence caused by toxins] [or other physical evidence] [, the treatment and the results of the treatment of the victims] shall be described;]

(l) [Any] affidavits of eye witness accounts, photographs, samples or other physical evidence;

(m) Data on natural disease profiles and occurrences in the area affected, as well as demographic data;

(n) A description of the control measures and their result in the affected area, if available;

(o) Other corroborative information;

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

Investigation mandate

3. The investigation mandate addressed to [...] and issued by the Director-General shall contain at least the following:

[(a) The decision of the [politically representative body] [Consultative Council] [Executive Council], on making of an investigation;]

(b) The name of the State Party or States Parties to be investigated;

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(d) The area where the investigation will commence specified on a map;

(e) The planned types of activity of the investigation team;

(f) Any transit or basing points to be used by the investigation team, as appropriate;

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

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

(i) The list of approved equipment to be used during the investigation;

[(j) The expected time frame necessary to complete the investigation;]

(k) Any other operational instructions;

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

Notification of investigation

[4. The Director-General shall immediately acknowledge receipt to the requesting State Party of its request for a [field] investigation [of the alleged use of biological weapons] and inform [the Executive Council and] all States Parties.]

[5. If applicable, the Director-General shall, not later than [12] [36] [48] hours prior to the arrival of the [field] investigation [of the alleged use of biological weapons] team at the point of entry, notify the State Party on whose territory the investigation has been requested. The Director-General shall also notify other States Parties if access to their territories might be required during the investigation.]

6. 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.

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

[(a) Name of the State Party on whose territory the [Field investigation] [Investigation of alleged use of BW] will take place;]

[(b) The nature of the [investigation] [request] [allegation];]

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(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) Location and characteristics of the area(s) where the incident(s) of non-compliance is alleged to have taken place;

[(g) Any effects on humans, animals or plants;]

(h) A list of approved equipment which the Director-General requests the investigated State Party to make available to the investigation team for use during the investigation;

(i) A list of laboratory facilities and other support which the Director-General requests, if applicable, the investigated State Party to make available to the investigation team for use during the investigation;

[(j) The investigation mandate;]

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

Duration of an investigation

8. The estimated period of duration of a [field] investigation [of alleged use of biological weapons] shall be indicated in the investigation mandate [and finalized after the pre-investigation briefing and shall not exceed that time unless extended by agreement of the State Party to be investigated] [shall not exceed ... days unless an extension is authorized by [the Executive Council]]. [The period of investigation means the period from ... until ... .]

(B) PRE-INVESTIGATION ACTIVITIES

[Designation] [Identification] of the area under investigation

9. The area [designated] [identified] for the [field] investigation [of the alleged use of biological weapons] by the requesting State Party shall be [designated] [delineated] as precisely as possible by providing the geographic coordinates, specified to the nearest second if possible, within which the affected area falls. [If possible,] the requesting State Party shall also submit a map specifying the [designated] [identified] area as well as the geographic characteristics of the area.

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[Alternative determination of final perimeter]

Inspection of approved equipment

10. The investigated State Party shall have the right to inspect the equipment of the investigation team 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 [if it deems necessary] equipment that is not in [conformity with the investigation mandate or] that has not been approved in accordance with ... .

Pre-investigation briefing

11. The investigation team shall be briefed by representatives of the investigated State Party with the aid of maps and other documentation as appropriate. The briefing shall include, inter alia, relevant natural terrain features, safety aspects, prevailing disease profiles in the area to be investigated, possible routes and means of transport to the area, logistical arrangements for the investigation, details of equipment and/or laboratory facilities provided on request of the Director-General and any other relevant information.

12. The investigated State Party may [indicate] [provide information indicating why, in their view, some] locations within the area under investigation [that in its view], are not related to the investigation. [This information would not be binding on the investigation team.]

13. The investigated State Party may provide additional information that became available after the request was made or that does not appear on the investigation mandate.

Investigation plan

[14. Before the commencement of a [field] investigation [of the alleged use of biological weapons], the investigation team shall prepare an initial investigation plan to serve, inter alia, as a basis for logistical and safety arrangements. The investigation plan [shall] [may] be updated as need arises.]

15. After the briefing the investigation team shall prepare an initial investigation plan to serve, inter alia, as a basis for logistic and safety arrangements. This plan shall contain the activities to be carried out by the team, logistic requirements of the team and provisional timings of the activities and requirements. This plan shall be made available to the investigated State Party [prior to the commencement of the investigation].

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Situation report

[16. The situation report shall indicate any urgent need for technical, medical, veterinary or agronomic assistance and any other relevant information. The progress reports shall indicate any further need for assistance that might be identified during the course of the investigation.]

Time frames for activities

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

(a) Inspection of equipment - not more than 2 hours;

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

[18. Activities upon arrival of the investigation team shall not exceed 7 hours.]]

(D) CONDUCT OF INVESTIGATION

[Managed] access

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

(a) Managing access to buildings and other structures that contain particular sensitive equipment or information unrelated to the prohibitions of the BTWC;

[(b) Declaring restricted-access sites which are particularly sensitive and unrelated to the investigation;]

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

(d) 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.

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[20. When a restricted-access site is declared each such site shall be no larger than four square kilometers and shall have clearly defined and accessible boundaries.]

[21. The investigation team shall have the right to take steps necessary to conduct its investigation up to the boundary of a restricted-access site.]

[22. The investigation team shall have the right to observe visually all open places within the restricted-access site from the boundary of the site.]

23. The investigation team shall make every reasonable effort to fulfil the investigation mandate [outside the declared restricted-access site. If at any time the investigation team demonstrates credibly to the investigated State Party that the necessary activities authorized in the investigation mandate could not be carried out from the outside and access to the restricted-access site is necessary to fulfil the mandate, some members of the investigation team shall be granted access to accomplish specific tasks within the site. The investigated State Party shall have the right to shroud or otherwise protect sensitive equipment, objects and materials not related to the purpose of the investigation. The number of investigators shall be kept to the minimum necessary to complete the tasks related to the investigation. The modalities for such access shall be subject to negotiation between the investigation team and the investigated State Party].

Implementation by the investigation team of specific on-site activities

Interviewing of eyewitnesses

24. The investigation team shall have the right to interview persons, with their [agreement] [written consent], who witnessed a specific incident or provide information on a series of incidents [, that could be used as information in the investigation]. The interview shall take place in the presence of representatives of the State Party on whose territory the investigation is conducted.

25. The investigation team may seek information relevant to the investigation which is necessary to fulfil their investigation mandate. If required, interpretation shall be provided by the investigation team, or where requested, by the State Party.

Interviewing of potentially exposed humans and owners of
potentially exposed plants and animals

26. The investigation team shall have the right to interview potentially exposed humans, or personnel responsible for plants or animals potentially exposed to BTW, with their [agreement] [written consent], in order to establish how the exposed plants or animals were affected. [The interview shall take place in the presence of representatives of the State Party on whose territory the investigation is conducted.]

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27. The investigation team may seek information relevant to the investigation which is necessary to fulfil their investigation mandate. If required, interpretation shall be provided by the investigating team, or where requested, by the State Party.

Interviewing of officials/personnel

28. The investigation team shall have the right to interview any relevant personnel, such as national/local government officials, personnel of any involved institutions, hospitals/medical facilities, etc. with their agreement, in the presence of a representative of the State Party [with the purpose of establishing the relevant facts]. [Advance notice of interviews shall be given.]

29. The investigation team shall only request information [and data relevant to the incident under investigation] which is necessary for the conduct of the investigation. If required, interpretation shall be provided by the investigation team, or where requested, by the State Party.

[30. The investigated State Party shall have the right to object to questions posed to 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.]

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

Visual [observation] [examination]

32. The investigation team shall have the right to examine visually [investigate] [visually observe] relevant areas in order to obtain information relevant to the investigation. All necessary precautions shall be taken to ensure the health and safety of the investigation team. The investigation team shall be accompanied by representatives of the State Party on whose territory the investigation is conducted.

[33. 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 relevant to and have no effect on the fulfilment of the investigation mandate by the investigation team. These may include, for example, the use of a video camera, photographs or drawings.]

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[Disease-related examination

34. Appropriate members of the investigation team shall have the right to conduct medical examinations, with informed consent, on persons affected, as well as on animals and plants affected, in order to be able to make a diagnosis and enable the investigation team to determine whether victims have in fact been affected and what they have been affected by.

35. The investigation team may, where necessary and applicable, with the necessary consent by the investigated State Party, and the written consent of the patient, take body samples in order to diagnose or confirm a clinical diagnosis of the disease or intoxination.

36. The investigation team may conduct post mortem examinations where relevant, with the necessary consent by the investigated State Party and the written consent by the family or the legal representative.

37. The investigation team may when necessary have access to [other] medical, veterinary or agricultural information relevant to the investigation, such as records, and may request the examination of laboratory animals or samples.

38. Whenever consent for an examination, sample collection or post mortem is refused, written explanation will be provided.

39. All medical information, excluding samples and other material taken from humans shall be accorded the most stringent protection measures by the ... .]

Sampling and identification

[40. The investigation team shall have the right to take and evaluate, where appropriate, environmental samples, samples of affected plants, samples of munitions and devices or remnants of munitions and devices in order to conduct tests for the presence of specific [listed] pathogens or toxins.]

41. The investigation team may take samples itself in the presence of a representative of the investigated State Party. If the investigation team deems it necessary, they may request the investigated State Party assist in the collection of samples under the supervision of members of the investigation team. [The investigation team may also request the investigated State Party to take appropriate control samples from areas neighbouring the areas under investigation.] 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 available to the investigation team. At the request of the investigation team, the investigated State Party shall to the extent possible provide assistance for the analysis of samples, using locally available resources. Should it be negotiated that the investigated State Party itself performs analyses, the investigation team may request that this be done in the presence of members of the team. If the State Party itself performs analyses the

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investigation team or some member especially assigned by the team leader shall be present during all analytical processes. All sampling [shall be conducted according to agreed procedures and methods and] transport shall be performed according to the required safety standards.

[42. Where the investigation team deems analysis on the territory to be impossible, it may remove samples for analysis in designated laboratories [, with the approval of the investigated State Party] [, if it deems it necessary]. Representatives of the investigated State Party shall have the right to accompany all samples and observe any analysis and the subsequent destruction. [Any samples remaining after analyses that have not been destroyed shall be returned to the State Party of origin.]

[43. Analysis shall be carried out in the territory of the State Party where the investigation is being made and only in the presence of a representative of the State Party.]

[44. Where applicable, 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 investigation mandate.]]

[Collection of background information and data

45. The investigation team shall have the right to collect and interpret background data necessary for the investigation. Background data may include normal and epidemic disease incidence and/or prevalence, demographic data [and data on the use of vaccines] [and vaccine production/purchase or usage]. [Only data that may have a direct effect on the investigation may be collected.]]

Communications

46. 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].

Expansion of the investigation team

47. If the investigation team deems that it lacks specific expertise necessary to conduct the investigation, it shall immediately notify the Director-General and the investigated State Party. [The Director-General shall [, with the agreement of the investigated State Party,] augment the team as appropriate from the full-time [or part time staff] [of the [SSC] [[Technical]

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Secretariat]] [or list of qualified experts], who shall be dispatched as soon as possible after the notification.]

Extension of investigation area

[48. If the investigation team during an investigation deems it necessary to extend the investigation onto the territory of a neighbouring State, the Director-General shall [, with the agreement of the investigated State Party,] notify that State about the need for access to its territory and request and confirm arrangements for the safe reception of the team.]

[49. If, during an investigation, the team considers it necessary to extend the investigation to a neighbouring State, the investigation should be conducted in accordance with the uniform procedures of initiation and conduct of investigations and in accordance with the Charter of the United Nations and the applicable rules of international law. The Secretary-General of the United Nations or other appropriate persons/organizations could notify the State Party of the need for access to its territory. The consent of the other State Party would be required. The extent of any such access would be agreed between the parties involved.]

Extension of investigation duration

50. If the investigation team deems that safe access to [a specific area relevant to the investigation] [an area specified in the investigation plan] is not possible, the requesting State Party shall be informed immediately. If necessary, the period of investigation shall be extended [with the agreement of the requesting State Party] until safe access can be provided and the investigation team will have concluded its mission.

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

[Preliminary findings and evaluation] [Initial report]

51. The [preliminary findings and evaluation] [initial report] shall summarize in a general way the activities conducted by the investigation team [, particularly with regard to the possible non-compliance concern cited in the investigation mandate] [and shall be limited to information directly related to the Convention].

[52. No later than [...] hours after the completion of an investigation, the investigation team shall meet with representatives of the receiving State Party with a view to examining the team's initial report and clarifying any remaining ambiguities. The team shall provide its initial report in written form, together with a list of the information, data and other material which it is intended to take outside the State. This document shall be signed by the team leader. In order to indicate that the representatives of the receiving State Party have been given sight of the contents of the initial report, the representatives of the receiving State Party shall countersign the report.]

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[53. In accordance with the applicable principles of managed access and without prejudice to the obligation of the receiving State Party to allow the investigation team to fulfil its mandate, the receiving State Party may place restrictions on request that restrictions be placed on or deny altogether the removal of documents or other materials if it deems this necessary to protect commercial proprietary or national security information. The receiving State Party shall have the right to request the removal from the initial report of any information unrelated to the investigation mandate.]

[Interim [Field investigation] [Investigation of alleged use of BW] report

54. An interim [field] investigation [of the alleged use of biological weapons] report [containing details as set out in Annex D,] shall be made available to the investigated State Party not later than [30] days after completion of the investigation. The investigated State Party shall have the right to comment on the contents of the report.

55. The interim [Field investigation] [Investigation of alleged use of BW] report shall summarize the factual findings of the investigation [, particularly with regard to the alleged incident of release or exposure to BW cited in the investigation request]. In addition, the report shall include a description of the investigation process, tracing its various stages, with special reference to:

(a) The locations and times of any sampling and on-site analysis;

(b) Supporting evidence such as the records of interviews, the results of disease-related examinations and epidemiological and scientific analyses, and the documents examined by the investigation team;

(d) The result of any completed laboratory investigations and sampling and identification;

[(e) An [assessment] by the investigation team of the degree and nature of access and cooperation granted by the investigated State Party and the extent to which this enabled the investigation team to fulfil its mandate.]]

[Laboratory reports

56. Laboratory investigations and identification of agents shall be reported by means of the following types of reports:

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(a) Initial laboratory report. An initial laboratory report shall be made available to the leader of the investigation team, by the laboratory as soon as possible after receipt of the sample(s) and shall indicate initial findings and an estimate of the duration of further work.

(b) Intermediate laboratory report. The laboratory shall make an interim laboratory report to the leader of the investigation team if it has not finalized its work after 30 days since the initial report. It shall report progress in work and a final estimate of further work.

(c) Final laboratory report. The laboratory shall make a final report of its findings to the leader of the investigation team as soon as it has finalized its work, but not later than 6 months after receipt of the sample(s).]

[Initial laboratory report

57. The initial laboratory report shall contain initial diagnoses if available or at least a differential diagnosis as well as a plan for the conduct of further investigations and tests.]

[Intermediate laboratory report

58. The interim laboratory report shall contain details of progress of work and a preliminary diagnosis or identification and the final plan for future work.]

[Final laboratory report

59. The final laboratory report shall contain a description of the work done and a complete diagnosis or identification of an agent or agents. If it was not possible to make a positive diagnosis or identification, the report shall state that fact and give an explanation as to why it was not possible to make a final diagnosis or identification.]

Final report

60. [The [Field investigation] [Investigation of alleged use of BW] shall be considered completed upon receipt of the final laboratory reports from all the laboratories that were tasked, as applicable, but not later than 6 months after the end of the on-site investigation.] A draft final [Field investigation] [Investigation of alleged use of BW] report shall [then] 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,] before submitting the final report to the Director-General.

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[61. The final report shall contain all the details contained in the interim [Field investigation] [Investigation of alleged use of BW] report, the final laboratory reports as well as any other information it obtained after the initial [Field investigation] [Investigation of alleged use of BW] report was made.]

[62. The final report shall also [include any] [integrate in a logical manner all] information the investigation team in the course of its investigation collected that might serve to [identify the origin of any biological agent or toxin found during the course of the investigation. Such evidence may include, inter alia, chemical composition and the presence of inert materials in the case of possible toxin weapons, and serological or molecular sequence evidence in the case of infectious agents. In either case, the report shall present such environmental and historical information as is available on the previous presence of the alleged agent in the region] [address the concerns expressed in the investigation mandate].]

[63. The report shall summarize the activities conducted by the investigation team and its factual findings, particularly with regard to the concern regarding probable use of BW against the State Party that requested the investigation. It shall also include an assessment 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.]

[64. The final investigation report shall immediately be made available to the receiving State Party. There shall be attached to it any written comments that the receiving State Party may at once make concerning the findings contained in it. The final report, together with the attached comments by the receiving State Party, shall be transmitted to the Technical Organ no later than [...] days after the completion of the investigation.]

[65. In the event that uncertainties identified by the investigation team persist or that the cooperation afforded by the receiving State Party is considered not to have met the required standards, the Technical Organ shall promote the holding of consultations for the purpose of obtaining further clarifications.]

[66. If the uncertainties cannot be removed or if the established facts are of a nature to imply that there was use of BW, the Technical Organ shall convene the Consultative Council to examine the final report.]

Notes

120. It was stated that the question of training also needed proper consideration in the context of training prior to selection in order to ensure that the Organization's roster of investigators was based on the principle of equitable geographical distribution.

121. "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.

122. "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.

123. It was suggested that this section be moved to the main body of the Protocol.

124. Article III, section F, subsection III, paragraph 19 (a) to (p) duplicated.

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