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Ad Hoc Group 11th Session

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BWC/AD HOC/41
Annex I
pages 259 - 274

ATTACHMENT144

144. A proposal by the Friend of the Chair on Investigations Annex is attached to provide delegations with the opportunity to study the proposals therein during the intersessional period.

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

BWC/AD HOC GROUP/WP.293
7 July 1998

Original: ENGLISH

Eleventh session
Geneva, 22 June - 10 July 1998

 

Working paper submitted by the Friend of the Chair on Annex D - Investigations

 

ANNEX D : INVESTIGATIONS : GENERAL PROVISIONS

 

1. Introduction:

1.1 The Ad Hoc Group in the format of the Friend of the Chair on Annex D (Investigations) has concluded three readings of the General Provisions part of Annex D. During these debates much progress was made in resolving outstanding issues and in clearly defining positions on issues where solutions still needed to be sought.

1.2 With an analysis of the issues which have not yet been resolved in the General Provisions part of Annex D it is apparent that there are only a few issues which could be identified as fundamental and which would take a longer debate to resolve. These included the issues of:

- The characterization of the [Technical] [Secretariat] [Body];

- Privileges and Immunities. As Friend of the Chair it is, however, suggested that this part of the text should be shifted. Some language changes on issues which could be resolved at this stage of the negotiations are also proposed in this part of the text by the Friend of the Chair.

- Confidentiality. As Friend of the Chair it is, however, suggested that this part of the text should be shifted.

- Access and Conduct of Investigations involving States other than the State Party to be investigated. As Friend of the Chair it is, however, suggested that this part of the text should be shifted. Language changes are also proposed in

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this part of the text by the Friend of the Chair to resolve issues which could be resolved at this stage of the negotiations.

- National Authority. This issue is left in square brackets to again be considered in this context once the entire issue has been resolved.

- Approved investigation equipment and its accessibility. This issue is left in square brackets to again be considered in this context once the list of approved investigation equipment has been finalized.

- How an investigation is to be initiated. This issue is left in square brackets to again be considered in this context once the entire issue has been resolved.

1.3 As Friend of the Chair proposals are made to possibly resolve some of the issues which appeared in the General Provisions part of the Annex. It is proposed that this Working Paper should be held over until the Group is again in a position to return to the General Provisions part of the Annex when the text together with the new language and compromises proposed can be considered in detail. To facilitate this and to provide delegations with the opportunity to study the proposal during the intersessional periods it is requested that the Working Paper be appended to the report of the Ad Hoc Group.

2. Proposed revised text for Annex D: Investigations: General Provisions:

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 such as technicians and interpreters. The Director-General shall designate the properly qualified investigation personnel from the appointed full time or part time staff of the technical section of the [Technical] [Secretariat] [Body]. In the employment of the staff and in the determination of the conditions of service due regard shall paid to the necessity of securing the highest standards of efficiency competency and integrity and the importance of selecting personnel on as wide an equitable geographic basis as possible.

2. No later than 30 days after entry into force of this Protocol, the Director-General shall communicate in writing to all States Parties an initial list of the names, nationalities, dates and

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places of birth, gender, passport numbers, ranks, qualifications and professional experience of the personnel designated for assignment to investigation teams by the Director-General.

3. Each State Party shall acknowledge receipt of this initial list of designated investigation personnel within 24 hours of receipt thereof. 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 non-acceptance in writing. The State Party may include the reason for the objection. In the case of non-acceptance, the proposed investigator or investigation assistant shall not participate in on-site investigation activities on the territory or in any other place under the jurisdiction or control of the State Party that has declared its non-acceptance. The Director-General shall immediately confirm receipt of the notification of non-acceptance. The Director-General shall, as necessary, submit further proposals in addition to the initial list.

4. Additions or changes to the list of investigation personnel shall be affected according to the procedures as set out in paragraphs 2 and 3 above. Any person designated to be an investigator or investigation assistant may withdraw from the list by informing the Director-General in writing. The Director-General shall notify State Parties of all changes to the list of designated investigation personnel.

5. A State Party that has been officially notified of an investigation, shall not seek the removal from the investigation team of any of the investigation personnel named in the investigation mandate. A State party shall have the right at any other time, to object to any member of the investigation personnel who has already been accepted. It shall notify the Director-General of its objection in writing and may include the reason for the objection. The Director-General shall within 12 hours of receipt of the objection, acknowledge receipt thereof. Such objection shall come into effect upon receipt by the State Party of the Director-General's acknowledgment.

6. The numbers of investigation personnel accepted by a State Party for designation must be sufficient to allow for availability and rotation of appropriate numbers of investigators and investigation assistants.

7. If, in the opinion of the Director-General, the non-acceptance of proposed investigation personnel impedes the designation of a sufficient number of investigation personnel or otherwise hampers the effective fulfillment of the tasks of the [Technical] [Secretariat] [Body], the Director-General shall refer the issue to the Executive Council for consideration and mediation.

 

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8. The [Technical] [Secretariat] [Body] shall ensure that each member of the designated investigation personnel is properly trained to conduct investigations. The [Technical] [Secretariat] [Body] shall conduct such training or it may coordinate, in agreement with the States Parties offering appropriate training, a schedule for such training.

(B) ACCREDITATION OF LABORATORIES

9. The [Technical] [Secretariat] [Body] shall utilize only properly accredited laboratories for off-site analyses of samples.

10. The criteria and procedures for accreditation of laboratories shall be approved by the first Conference of State Parties.

11. No later than 30 days after entry into force of this Protocol or after the accession of a State Party to the Protocol the Director-General shall communicate to the States Parties the criteria required for the accreditation of laboratories as approved by the first Conference of State Parties.

12. States Parties shall, within 60 days after receiving the communication of the criteria for the accreditation of laboratories, nominate laboratories for accreditation.

13. Nominated laboratories shall be accredited and certified by the Director-General to perform specific analytical or other functions in accordance with the procedures as approved by the first Conference of State Parties. The Director-General 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.

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

15. Further laboratories may, when necessary, be accredited in accordance with the provisions referred to in paragraphs 9 and 11 above . The accreditation of each laboratory shall be subject to renewal every 3 years.

  

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(C) PRIVILEGES AND IMMUNITIES1

16. Following acceptance of the initial list of investigators/visitors and investigation/visit assistants as provided for in paragraph 2 and 3 above or as subsequently altered in accordance with paragraph 4 and 5 above, each State Party shall be obliged to issue, in conformity with its national visa-related laws and regulations and upon application by an investigator/visitor or investigation/visit assistant, multiple entry/exit and/or transit visas and other relevant documents to enable each investigator/visitor or investigation/visit assistant to enter and to remain on its territory for the sole purpose of carrying out investigation activities or 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/visitor or investigation [or visit] assistant to remain on its territory for the sole purpose of carrying out the investigation/visit activities.

17. To exercise their functions effectively, investigators/visitors and investigation/visit assistants (hereinafter referred to as "members of the investigation/visit team") shall be accorded by the investigated/visited State Party and 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 Party and Host State Party, 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

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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] [Body].

(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.

18. When transiting the territory of non-investigated State 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 18 (c) and (d).

19. 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,

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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.

[20. 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] [Body] in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to [the purposes for which the immunity is accorded] [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.]

[21. The immunity from jurisdiction of members of the investigation [visit] team may be waived by the Director-General in those cases when the Director-General 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.]

[22. In parallel to the procedure set forth in paragraph 21 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.]

23. Observers shall be accorded the same privileges and immunities accorded to investigators / visitors pursuant to this section, except for those accorded pursuant to paragraph 18 (d).

24. In the event of an alleged breach of confidentiality, the Director-General, [the Executive Council] or the Conference, as specified in paragraphs 21 and 22, depending on the immunity at issue, shall request and pay [utmost respect to the opinion] [due regard to the

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views] of the "Commission for the settlement of disputes related to confidentiality" (hereinafter referred to as "the Commission") as to whether to waive immunity.2

(D) STANDING ARRANGEMENTS

Point(s) of entry

25. Each State Party shall designate its point(s) of entry and shall supply the required information to the [Technical] [Secretariat] [Body] 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 24 hours. Locations of point(s) of entry shall be provided to all States Parties by the [Technical] [Secretariat] [Body].

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

27. If the [Technical] [Secretariat] [Body] 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 receive an investigation3

28. In cases where facilities or areas of an receiving 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 receiving State Party shall exercise the rights and fulfil the obligations concerning such investigations in accordance with this Protocol and its Annexes . 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 receiving State Party shall facilitate such transit.

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29. In cases where facilities or areas of an receiving State Party are located on the territory of a State not Party to this Protocol, the receiving 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 Protocol and its Annexes. 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 receiving State Party is unable to ensure access, it shall demonstrate that it took all necessary measures to ensure access.

30. 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 receiving State Party and a Host State Party without prejudice to 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 Protocol and its Annexes. 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 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.

31. In cases where the investigation is related to paragraphs 28, 29 and 30, the Director-General shall notify the states directly involved in accordance with Annex D paragraph ... .

Arrangements for use of non-scheduled aircraft

32. Where timely travel to the point of entry is not feasible using scheduled commercial flights, an investigation team may utilize non-scheduled aircraft. No later than 30 days after this Protocol enters into force for it, each State Party shall inform the [Technical] [Secretariat] [Body] of the standing diplomatic clearance number for non-scheduled 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] [Body] as the basis for such procedures.

33. When a non-scheduled aircraft is used, the [Technical] [Secretariat] [Body] shall provide the receiving State Party with the proposed flight plan [, through the National Authority,]4 for the aircraft's flight from the last airfield prior to entering the airspace of the

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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. The [Technical] [Secretariat] [Body] 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.

34. 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 receiving State Party or Host State Party shall ensure that the flight plan filed in accordance with paragraph 35 is approved so that the investigation team may arrive at the point of entry by the estimated arrival time.

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

Administrative arrangements

36. The receiving 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 receiving State Party shall be reimbursed by the Organization for all such costs incurred by the investigation team within 30 days after receipt of a proper claim for such costs from the receiving State Party.

Approved investigation equipment

37. The list of approved investigation equipment for use during on-site investigations, [which shall be commercially available to all States Parties of the Protocol]5, as well as the specifications of this equipment where relevant and appropriate, 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.

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38. The [Technical] [Secretariat] [Body] shall, as appropriate, update the list of equipment. The updated list shall be considered and approved by the Conference.

39. The [Technical] [Secretariat] [Body] shall ensure that all types of approved equipment are available for on-site investigations when required. When required for an on-site investigation, the [Technical] [Secretariat] [Body] 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 receiving State Party, the [Technical] [Secretariat] [Body] shall provide documentation and attach seals to authenticate the certification.

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

41. Subject to paragraph 44, there shall be no restriction by the receiving State Party on the investigation team bringing into investigation site such equipment on the list which the [Technical] [Secretariat] [Body] 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.

42. The receiving 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 receiving State Party or the Host State. To facilitate such identification, the [Technical] [Secretariat] [Body] 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 receiving State Party that the equipment meets the description of the approved equipment specified in the mandate for the particular type of investigation. The receiving State Party has the right to exclude equipment not meeting that description or 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 22 (h).

43. In cases where the investigation team finds it necessary to use equipment available on site not belonging to the [Technical] [Secretariat] [Body] and requests the receiving State Party to enable the team to use such equipment the receiving State Party shall comply with the request to the extent it can. The investigation team shall have the right to observe and confirm

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the calibration of such equipment. The State Party shall be reimbursed for the cost of making the equipment available and for the calibration required by the investigation team.

(E) PRE-INVESTIGATION ACTIVITIES

Assignment of investigation team

44. The Director-General shall determine the size of the investigation team and select the proper qualified members to conduct the specific type of investigation requested in the investigation request on as wide an equitable geographic basis as possible. Members of the investigation team shall be selected from the list of designated investigation personnel. 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 20 persons. The Director-General may extend the size of the investigation team when necessary and in agreement with the receiving State Party. No national of the requesting State Party or the State Party to be investigated shall be a member of the investigation team. The Director-General may alert the selected members of the investigation team, as soon as possible after receipt of the investigation request, for possible dispatch.

Observer

45. 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.

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

47. The State Party to be investigated shall, as a rule, accept the proposed observer, but if the State Party to be investigated exercises a refusal, that fact shall be recorded in the final report.

48. The requesting State Party shall liaise with the [Technical] [Secretariat] [Body] 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.

49. The observer shall have the right throughout the period of investigation to be in communication with the embassy of the requesting State Party located in the receiving State Party, or in the case of absence of an embassy, with the requesting State Party itself. The receiving State Party shall provide means of communication to the observer.

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50. 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 receiving State Party.

51. 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.

52. Throughout the investigation, the investigation team shall keep the observer informed about the conduct of the investigation and the findings.

53. Throughout the investigation, the receiving 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 receiving State Party, shall be borne by the requesting State Party.

Dispatch/arrival of investigation team

54. The Director-General shall dispatch an investigation team as soon as possible after an investigation request has been received and [approved]6 in accordance with Article III section F subsection III. 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.

55. The Director-General may, when necessary, dispatch an element of the investigation team earlier than the rest if the time period for the compilation of the whole team is too long. The rest of the team may join the initial element at a later stage.

(F) POST-INVESTIGATION ACTIVITIES

Preliminary findings

56. Upon completion of the investigation, the investigation team shall meet with the receiving State Party to review the team's preliminary findings and to clarify any remaining ambiguities. The team shall provide to the receiving State Party its preliminary findings in written form, having taken into account the provisions on Confidentiality provided for in this Protocol, together with a list of any samples and copies of written information and data gathered and other material they contemplate to take off site. This document shall be signed by the team leader. In order to indicate that the receiving State Party has taken note of the

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contents of the initial findings, the representative of the receiving State Party shall countersign the document. The receiving state Party shall have the right to have its comments on the preliminary findings annexed to the document. This meeting and these procedures shall be completed not later than 24 hours after completion of the investigation.

57. The receiving State Party may draw to the attention of the investigation team any information, specific samples, documents or other materials obtained in accordance with

section II, paragraphs ..., and section III, paragraphs ..., of this Annex and contained in the preliminary findings which, in its view, is unrelated to the investigation mandate. The receiving State Party shall also have the right to request that the information, specific samples or other materials identified as being in its view unrelated to the investigation mandate be considered confidential or removed from the preliminary findings. If the receiving State Party and the investigation team do not agree on whether the information, specific samples or other materials identified is unrelated to the investigation mandate, this shall be noted in the preliminary findings.

Departure

58. Upon completion of the post investigation activities, the investigation team and the observer shall leave the territory of the receiving State Party as soon as possible. The receiving 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 receiving 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

59. In carrying out the investigation in accordance with the investigation mandate, the investigation team shall conduct investigations in accordance with the provisions of this Protocol and its Annexes, and shall use only those methods provided for in this Protocol and its Annexes which are necessary to provide sufficient relevant facts to clarify the specific concern about possible non-compliance described in the investigation mandate and shall refrain from activities not relevant thereto.

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

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[61. 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.]7

Notes to the attachment

1. This section should be moved to be part of Article IX or as an Annex to Article IX. Some language suggestions are, however, made in this section by the FOC on Annex D.

2. This paragraph should be included in the language on Confidentiality.

3. This section should be moved to the main body of the Protocol.

4. This language should be retained in square brackets until the issue of the National Authority has been resolved in the Protocol.

5. This language should be retained in brackets until the list of approved equipment has been finalized.

6. These brackets to be retained until the issue of how an investigation is to be initiated has been resolved.

7. This paragraph should be moved to the Annex on Confidentiality.

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