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III. INVESTIGATIONS⁴¹

(A) INITIATION AND TYPES OF INVESTIGATIONS

[1. The provisions of this section shall only be available to address non-compliance concerns that occur after the entry into force of this Protocol.]

2. Each State Party shall have the right to request an investigation for the sole purpose of determining the facts relating to a specific concern about possible non-compliance with the Convention by any other State Party [(hereinafter referred to as the "alleged non-compliant State Party")]⁴².

3. Each State Party shall be under the obligation to keep all requests within the scope of the Convention and refrain from unfounded requests.

4. The requesting State Party [the State Party requesting an investigation (hereinafter referred to as the "Requesting State Party")] shall specify in each request which one of the following types of investigation it is seeking:

1) [Field] investigations [of the alleged use of biological weapons] [, to be conducted in geographic areas where the release of, or exposure of humans, animals or plants to microbial or other biological agents and/or toxins has given rise to a concern about non-compliance with Article I of the Convention by a State Party].
(2) [Facility] investigations [of any other alleged breach of obligations under the provisions of the Convention] [, to be conducted inside the perimeter of a particular facility(ies) for which there is a concern that it is involved in activities prohibited by Article I of the Convention].
[(3) Investigations where there is a concern that a transfer has taken place in violation of Article III of the Convention.]

5. All natural outbreaks of disease do not pose a compliance concern to the Convention [and therefore shall not be cause for an investigation of a non-compliance concern] [as set out in Annex ...].⁴³ ⁴⁴

[5 bis All natural outbreaks of disease do not pose a compliance concern to the Convention and therefore shall not be a cause for an investigation of a non-compliance concern. The diseases which are endemic in the region and present the expected epidemiological features shall not be considered as a unusual outbreak of disease. An outbreak of disease which appears to be unusual, shall be investigated by the affected State Party, as per guidelines set out in Annex D, section V, and concluded as soon as possible.]

[5 ter Accidents which are a result of activities not prohibited under the Convention do not pose a compliance concern to the Convention and therefore shall not be cause for an investigation of a non-compliance concern as set out in Annex ... .]

6. An investigation may be requested to be conducted on the territory of a State Party, or in any other place under its jurisdiction or control, regardless of the form of ownership of the facility or the geographic area subject to the investigation, in accordance with the provisions of this Protocol and its Annexes [(hereinafter referred to as the "receiving State Party")].

[7. A [field] investigation [of alleged use of biological weapons] may also be requested to be conducted on the territory of a non-State Party, or in any other place under its jurisdiction or control, if there are concerns that a State Party [which shall be identified in the request] is the cause of the non-compliance concern. Consultations shall be undertaken with the non-State Party concerned in order to secure its agreement that the provisions and rights with regard to access and conduct of investigations foreseen for States Parties under the Protocol, or any other investigation arrangements which are deemed mutually acceptable by the non-State Party and the [Director-General] [Executive] [Consultative] Council, may be applied, as appropriate, to an investigation on its territory or at any other place under its jurisdiction or control.]

[8. In the case of a non-compliance concern involving a State which is a party to the Convention but not to the Protocol, States Parties, where appropriate, shall use the relevant provisions of the Convention to seek to resolve the concern. In cases where an investigation is initiated under the Convention, the provisions and rights with regard to access and conduct of investigations foreseen under the Protocol may be applied, as agreed and appropriate.]

[9. In cases of concerns with respect to biological or toxin weapons involving a State not party to the Convention, [the Organization] shall closely cooperate with the [Security Council and the] Secretary-General of the United Nations. If so requested, [the Organization] shall put its resources at the disposal of the [Security Council and the] Secretary-General.]

10. Requests for investigations shall be submitted in writing by the requesting State Party to [the United Nations Security Council, in accordance with Article VI of the Biological Weapons Convention] [[the [Executive] [Consultative] Council and at the same time to] the Director-General for immediate processing] [and circulation to the [Executive] [Consultative] Council] in accordance with procedures as set out in this Protocol and its Annexes.

11. States Parties [shall] [may] [first] make [every effort] [full] [use [where possible and as appropriate] of opportunities] for bilateral and multilateral clarification and consultation [through the Organization] [in accordance with Article V of the BTWC] [[and established procedures under the Protocol] to resolve a concern about non-compliance with the Convention [[prior to] [or] [in parallel to] a request]].

12. Other States Parties may undertake to assist, on a voluntary basis and to the extent they may be capable and/or are requested, by the States Parties concerned [or by the BTWC Organization] in clarifying or resolving matters related to a concern about non-compliance, which has been raised as a matter for consultation, clarification and cooperation. [[International organizations such as WHO, FAO and IOE] [and an international epidemiological network] may play a role in such consultation and clarification procedures.]

(D) INFORMATION TO BE SUBMITTED WITH A REQUEST FOR AN INVESTIGATION TO ADDRESS A CONCERN OF NON-COMPLIANCE WITH THE CONVENTION

13. A State Party requesting an investigation shall provide [, to the extent possible,] [all] relevant [available] [necessary] information [and evidence] indicating a non-compliance concern [as specified in paragraphs ... of this section] [including location, how the concern arose, the type of non-compliant activity, the specific event or activities which gave rise to the concern, the date and place of any such event or activities]. All such information shall be as precise as possible.

[14. Other States Parties may provide information relevant to the request. Any such submission shall not delay the consideration of the request by the [Executive] [Consultative] Council described in paragraph ... .]

[15. States Parties which provide information pursuant to paragraphs 13 and 14 shall also provide relevant information about the source of such information, [confirming [proving] [and demonstrating] its [reliability] [and impartiality,] [its non-discriminatory nature] [that it is well-founded] [and open to multilateral scrutiny]].]

16. Requests for [field] investigations [into alleged use of biological weapons] under paragraph 4 of this Article for an event(s) which has given rise to a concern about non-compliance shall at least include the following information:⁴⁶ ⁴⁷

(a) Name of the State [Party] on whose territory or in any other place under whose jurisdiction or control the alleged event(s) has taken place;
(b) If the alleged event(s) has taken place, in any place on the territory of a State [Party] which is not under its jurisdiction or control, the name of that State [Party] [(hereinafter referred to as the "host State Party/State")];
(c) A description of the event(s), including all [available] information on:
(i) The [use] [release] of microbial or other biological agent(s) or toxin(s) for other than peaceful purposes; and/or
(ii) Weapons, equipment or means of delivery used in the alleged event(s);
(d) The circumstances under which the event(s) took place;
(e) The suspected cause and/or perpetrator of the event(s);
(f) The date and time when the alleged event(s) took place and [/or] became apparent to the requesting State Party and, if possible, the duration of that event(s);
(g) The area requested to be investigated identified as precisely as possible by providing the geographic coordinates, specified to the nearest second if possible, or other alternative measures, as well as a map specifying the identified area and the geographic characteristics of the area;
(h) Whether the victims are humans, animals or plants as well as an indication of numbers affected and a description of the consequences of exposure;
(i) Symptoms and/or signs of the disease;
(j) All available epidemiological data relevant to the disease outbreak;
[(k) Substantiating evidence to differentiate the event(s) to be investigated from a natural outbreak of disease and demonstrate that it is not a natural outbreak of disease [or accidents which are a result of activities not prohibited under the Convention];]⁴⁸
[(l) Information from and/or the outcome or results of [any] prior consultations/ clarifications relevant to the request.]

17. In addition to the information to be supplied with a request pursuant to paragraph 16, other types of information may also be submitted as appropriate and to the extent possible including, inter alia:

(a) Reports of any internal investigation including results of any laboratory investigations;
(b) Information on the initial treatment and the preliminary results of the treatment of the disease;
(c) A description of the measures taken to prevent the spread of the disease outbreak and to eliminate the consequences of the event(s), and their results in the affected area, if available;
(d) [Request for specific assistance] [Information on any requests for assistance relevant to the alleged event(s)], if applicable;
[(e) In the case of alleged accidental release of microbial or other biological agents or toxins, information on a facility(ies) from which the accidental release could have taken place;]
(f) Any other corroborative information, including affidavits of eye witness accounts, photographs, samples or other physical evidence [which in the course of internal investigations have been recognized as being related to the event(s)].

[18. To avoid abusive or frivolous requests, in addition to the requirements set forth in paragraph 16, requests for a field investigation based upon an outbreak of disease or intoxification of concern shall contain information indicating that such outbreak is potentially connected to activities prohibited by the Convention. The State Party on whose territory the field investigation is proposed to occur or any other State Party may provide any information that indicates such outbreak of disease or intoxification is naturally occurring or otherwise unrelated to activities prohibited by the Convention. This information shall also be taken into account by the [Executive] [Consultative] Council in its consideration of the investigation request in accordance with the request procedures of paragraph ... of this Article.]⁴⁹

19. Requests for [facility] investigations [of any other alleged breach of obligations under the provisions of the Convention] under paragraph 4 of this Article for an event(s) which has given rise to a concern about non-compliance shall at least include the following information:

(a) Name of the State Party on whose territory or in any other place under whose jurisdiction or control the non-compliant activity has allegedly taken place;
(b) A [detailed] description of the specific event(s) or activity(ies) which gave rise to a non-compliance concern, including [specific] information regarding the development, production, stockpiling, acquisition or retention of:
(i) Microbial or other biological agents or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;
(ii) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict;
(c) The [name, if known, or other form of identification and] location(s) of the [facility[ies]] [site[s]] where the alleged non-compliant activity(ies) took place. This shall include as much detail as possible including a site diagram, indicating boundaries as well as the requested perimeter, related to a reference point with geographic coordinates, specified to the nearest second, if possible, or other alternative measures;
(d) The approximate period during which the non-compliant event(s) or activity(ies) is alleged to have taken place;
(e) Information from and/or the outcome or results of [any] prior consultations/ clarifications or other prior investigations relevant to the request;
[(f) Information to demonstrate that the non-compliance concern is not a natural outbreak of disease.]

20. In addition to the information to be supplied with a request pursuant to paragraph 19, other relevant information should also be submitted as appropriate and to the extent possible including, inter alia:

(a) Whether the facility[ies] concerned has been declared under the Protocol; and any information included in or absent from the declaration relevant to the allegations; if not, any information to suggest that the facility[ies] concerned should have been declared under the Protocol;
(b) Details of the ownership and/or operator of the facility concerned.

[(E) FOLLOW-UP AFTER SUBMISSION OF AN INVESTIGATION REQUEST AND [EXECUTIVE] [CONSULTATIVE] COUNCIL DECISION-MAKING

21. The Director-General, after receiving an investigation request, shall acknowledge receipt of it to the requesting State Party within [two] hours and shall communicate the request to the State Party sought to be investigated within [six] hours and to all other States Parties within [24] hours.⁵⁰

22. The Director-General shall task the Technical [Secretariat] [Body] immediately to ascertain that the investigation request meets the requirements set out in paragraphs ... of this Article and, if necessary, [to] [shall] assist the requesting State Party in revising the investigation request accordingly. The Director-General shall immediately inform the [Executive] [Consultative] Council that the requesting State Party is revising the request. Any revised request shall be submitted and processed in the same way as an original request.

23. [When the investigation request fulfils the requirements] [Immediately upon receipt of an investigation request], the Director-General shall begin preparations for the investigation without delay.

[24. The Director-General, upon receipt of an investigation request referring to an investigation area under the jurisdiction or control of a State Party, shall immediately seek clarification from the State Party sought to be investigated in order to clarify and resolve the concern raised in the request. A State Party which receives a request for clarification pursuant to this paragraph shall provide the Director-General with explanations and with other relevant information as soon as possible but no later than ... hours after receipt of the request for clarification. Unless the requesting State Party considers the concern raised in the investigation request to be resolved and withdraws the request, the [Executive] [Consultative] Council shall take a decision on the request in accordance with paragraph 26.]

25. The [Executive] [Consultative] Council shall begin its consideration of an investigation request immediately upon its receipt and shall [take a decision on it] [conclude its consideration of it] no later than [12] hours after [its receipt] [receipt of the original request] [approving of the request by the Technical [Secretariat] [Body]].

26. [Providing [the Director-General determines that] the request [satisfied agreed requirements] [met the requirements set out in paragraphs ... of this Article],] the investigation [shall] [would] proceed [if formally approved by [at least a two-thirds majority] [a three-quarters majority] [present and voting] of] [unless] the [Executive] [Consultative] Council [decides by a three-quarters majority of all its members against carrying out the investigation] [where it considers the investigation request to be frivolous, abusive or clearly beyond the scope of the Convention].⁵¹

27. If the [Executive] [Consultative] Council decides against an investigation request, preparations shall be stopped, no further action shall be taken on it and the State Party concerned shall be informed accordingly.

[28. [The [Executive] [Consultative] Council, in examining the information submitted with the investigation request, may call for more information from the requesting State Party.] [The [Executive] [Consultative] Council [may] [could] also recommend bilateral or multilateral consultations to resolve the issue.] [The [Executive] [Consultative] Council may also consider whether to request more information from [other relevant international organizations] [such as] [WHO/IOE/FAO] [that would be necessary for taking a decision on a request] [which it considers necessary for further consideration of the investigation request] [or whether to request the WHO/IOE/FAO to conduct an investigation].]]]

[(F) ISSUE OF INVESTIGATION MANDATE

29. Pursuant to paragraph 26 the Director-General shall issue an investigation mandate to the investigation team leader [according to the decision [and recommendations] by the [Executive] [Consultative] Council] for the conduct of the investigation. The investigation mandate shall be based upon the investigation request and shall contain the information specified in paragraph ... of Annex D. The investigation mandate shall be clear and specific and shall be [strictly] observed by the investigation team.

30. The investigation mandate shall be made available to the State Party to be investigated [through notification of investigation made by the Director-General and] [by the investigation team upon the latter's arrival at the point of entry].]

(G) [ACCESS AND MEASURES TO GUARD AGAINST ABUSE DURING THE] [CONDUCT OF INVESTIGATIONS]

31. The investigation shall be conducted in accordance with the provisions of this Protocol and the Annex.

[32. The investigated State Party shall provide access [to the investigation team] [within the time frame specified in paragraph ... of Annex D] [within the [approved] investigation area for the sole purpose of collecting facts relevant to the mandate and] [in accordance with] [to which it is entitled under] [the Protocol and its Annexes].

[The investigated State Party shall be under the obligation to allow the greatest degree of access to facilities or areas to be investigated for the sole purpose of establishing facts relevant to the concern regarding possible non-compliance [taking into account] [without prejudice to] its constitutional obligations with regard to proprietary rights or searches and seizures.]

33. The investigated State Party shall make every reasonable effort to demonstrate its compliance with [the Convention] [and this Protocol] and to this end to enable the investigation team to fulfil its mandate.

34. [The extent and nature of access to a particular place or places within the [approved] investigation area shall be negotiated between the investigation team and the investigated State Party [on a managed access basis].]

The investigated State Party shall have the right [under managed access] to take such measures [as are] [it deems] necessary to protect sensitive national security or commercial proprietary information not related to activities prohibited by the Convention [, or to comply with its constitutional obligations with regard to proprietary rights or searches and seizures].

This may include restricting access to any particularly sensitive [facility], area or information [unrelated to the prohibitions of the BTWC] [not related to activities prohibited by the Convention] [unrelated to the contents of the request].

[The extent and nature of access to a particular place or places will in such cases be negotiated between the investigation team and the investigated State Party [on a managed access basis] [, so as to enable the investigation team to fulfil its mandate].]

An illustrative list of specific measures which an investigated State Party might, if necessary, take to this end is set out in Annex D.

If the investigated State Party provides less than full access to places, activities, or information, it shall [as a rule] make all reasonable [and feasible] efforts to provide [reliable] alternative means to demonstrate compliance.

[35. The investigated State Party shall have the right to restrict [or deny] access to any particularly sensitive [facility], area or information not related to activities prohibited by the Convention.]

[The investigated State Party shall have the right to make the final decision regarding any access of the investigation team, taking into account its obligations under this Protocol and the provisions on managed access [without prejudice to the provisions in paragraph 32].]]⁵²

[36. Pursuant to a request for an investigation of a facility or location, and in accordance with the procedures provided for in Annex D, the investigated State Party shall have:

(a) The right and the obligation to make every reasonable effort to demonstrate its compliance with [the Convention] [and this Protocol] and, to this end, to enable the investigation team to fulfil its mandate;
(b) The obligation to provide access within the [requested site] [[facility or] [site] designated for investigation] for the sole purpose of establishing facts relevant to the concern regarding possible non-compliance [[taking into account] [without prejudice to] constitutional obligations it may have with regard to proprietary rights or searches and seizures]; and
(c) The right to take measures to protect sensitive installations, and to prevent disclosure of confidential information and data, not related to activities prohibited by the Convention.]⁵³
[37. Pursuant to a request for an investigation of a facility or location, and in accordance with the procedures provided for in Annex D, the investigated State Party shall have:
(a) The right and obligation to make every reasonable effort to demonstrate its compliance with the Convention and, to this end, to enable the investigation team to fulfil its mandate;
(b) The obligation to provide access within the requested site designated for investigation for the sole purpose of establishing facts relevant to the concern regarding possible non-compliance; and
(c) The right to take measures to protect sensitive installations, and to prevent disclosure of confidential information and data, not related to the Convention.

38. The investigated State Party shall provide access to the investigation team within the requested site within ... hours of receiving the notification of the intent to conduct an investigation. The extent and nature of access to a particular place or places within the requested site shall be negotiated between the investigation team and investigated State Party.

39. Upon request of the investigation team, the investigated State Party may provide aerial access to the investigation site.

40. In meeting the requirement to provide access as specified in paragraph 46, the investigated State Party shall be under the obligation to allow the greatest degree of access taking into account any constitutional obligations it may have with regard to proprietary rights or searches and seizures. The investigated State Party has the right under managed access to take such measures as are necessary to protect national security or commercial proprietary information. The provisions of this paragraph may not be invoked by the investigated State Party to conceal evasion of its obligations not to engage in activities prohibited by the Convention.

41. If the investigated State Party provides less than full access to places, activities or information, it shall be under the obligation to make every reasonable effort to provide alternative means to clarify the possible non-compliance concern that generated the investigation.

42. In carrying out the investigation in accordance with the investigation mandate, the investigation team shall use only those methods necessary to provide sufficient relevant facts to clarify the concern about possible non-compliance with the provisions of the Convention, and shall refrain from activities not relevant thereto. It shall collect and document such facts as are related to the possible non-compliance with the Convention by the investigated State Party, 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.

43. The investigation team shall be guided by the principle of conducting the investigation in the least intrusive manner possible, consistent with the effective and timely accomplishment of its mission. Wherever possible, it shall begin with the least intrusive procedures it deems acceptable and proceed to more intrusive procedures only as it deems necessary.

44. The investigation team shall take into consideration suggested modifications of the investigation plan and proposals which may be made by the investigated State Party, at whatever stage of the investigation including the pre-investigation briefing, to ensure that sensitive equipment, information or areas, not related to biological or toxin weapons, are protected.

45. The investigation team and the investigated State Party shall negotiate: the extent of access to any particular place or places within the requested site as provided in paragraph ...; the particular investigation activities, including sampling, to be conducted by the investigation team; the performance of particular activities by the investigated State Party; and the provision of particular information by the investigated State Party.]

46. The investigation team shall conduct its investigation in the least intrusive manner possible consistent with its effective and timely implementation of its mandate, and shall collect only relevant information necessary to clarify the specific non-compliance concern.

47. The investigation team shall have the right to request clarifications in connection with ambiguities that may arise during an investigation. Such requests shall be made promptly to or through the representative of the investigated State Party. The representative shall make every reasonable effort to provide the investigation team with such clarification as may be necessary to remove the ambiguity.

[48. These provisions may not be invoked by any investigated State Party to conceal any evasion of its obligations not to engage in activities prohibited under the Convention.]

[[Field] investigations [of the alleged use of biological weapons]

[49. During [field] investigations [of the alleged use of biological weapons] the investigation team may [request to] conduct any or [all] [combination] of the following activities: interviewing, visual observation, [auditing,] [medical/disease-related examination,] [sampling and identification and collection of background information and data].]

[50. The receiving State Party shall provide access to areas external to buildings or other structures. The extent and nature of access to a particular area shall be negotiated between the investigation team and the receiving State Party on a managed access basis.]

51. [The receiving State Party shall provide access within buildings or other structures for the sole purpose of enabling the investigation team to conduct the specific on-site activities identified in Annex D, section II, paragraphs ... when it is impossible to conduct such activities outside of such buildings or structures.] In cases of [field] investigations [of the alleged use of biological or toxin weapons], [the investigated State Party shall provide access to] the investigation team [[shall] [may] with the consent of the receiving State Party, have access] to all such areas that might have been affected, including hospitals, refugee camps and other places, as it considers necessary for the effective conduct of its investigation without interfering with national measures to contain [and remedy the consequences of the alleged use of biological or toxin weapons] [the outbreak] [or the possible outbreak].

52. The investigated State Party shall have the right, in accordance with the obligation to demonstrate compliance, to protect sensitive installations and to prevent disclosure of sensitive information and data not related to the investigation mandate or to activities prohibited by the Convention to take specific measures which may include but are not limited to the following:

(a) Managing access to [areas identified according to paragraph ¼ above] [as well as buildings and other structures] that contain particular sensitive equipment or information not related to the investigation mandate or activities prohibited by the Convention;
(b) Limiting the time investigation team members may spend in any area [or building], while allowing the team to fulfil its mandate;
(c) Limiting the number of investigation team members entering the areas, buildings or structures;
(d) Notifying the investigation team of the products and processes in which it has a proprietary or national security interest and its right to safeguard such 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].

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

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

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

56. 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].

[57. During the conduct of the investigation, the investigation team shall have the right to request access to buildings or other structures beyond that provided pursuant to paragraph 51. If the receiving State Party agrees to this request, the extent and nature of such access to the specific building or other structure shall be negotiated between the investigation team and the receiving State Party on a managed access basis. In the event the receiving State Party refuses the request, the investigation team may request a facility investigation pursuant to paragraph 58.

58. If the receiving State Party denies the investigation team’s request to access buildings or other structures made pursuant to paragraph 57, the Director-General of [the Organization] shall have the right to submit to the [Executive] [Consultative] Council a written request to conduct a facility investigation. Such request shall include the name and location of the facility to be investigated, the requested perimeter for the proposed facility investigation, and the information indicating that this facility may be connected to the alleged non-compliance concern that prompted the field investigation.

59. Contemporaneously with submitting the Director-General’s request to the [Executive] [Consultative] Council, pursuant to paragraph 58, the Director-General shall transmit a copy of the request to the receiving State Party. The receiving State Party shall acknowledge to the Director-General its receipt of the request within one hour.

60. Upon receipt of the receiving State Party’s acknowledgement, pursuant to paragraph 59, the investigation team shall have the right to collect factual information, in accordance with ..., on vehicular exit activity from exit points for land, air, and water vehicles of the requested facility perimeter. The investigation team shall have the right to continue to collect such information until the [Executive] [Consultative] Council decides against carrying out the facility investigation in accordance with paragraph 61, or the facility investigation is completed.

61. The facility investigation shall proceed unless the [Executive] [Consultative] Council, not later than [48] hours after having received the facility investigation request pursuant to paragraph 58, decides by a ... majority of all its members against carrying out the facility investigation, if it considers the facility investigation request not to be supported by the information submitted by the investigation team. If the [Executive] [Consultative] Council decides against the facility investigation, perimeter monitoring shall be stopped, no further action on the facility investigation request shall be taken, and the States Parties concerned shall be informed accordingly.

62. A State Party that is a member of the [Executive] [Consultative] Council shall not have the right to vote on a request regarding a facility located in its territory or in any other place under its jurisdiction or control. If the State Party that submitted the request for a field investigation, pursuant to paragraph ..., is a member of the [Executive] [Consultative] Council, that State Party shall not have the right to vote on the Director-General’s request to conduct a facility investigation. The receiving State Party and the State Party that submitted the request for a field investigation shall have the right to participate in any [Executive] [Consultative] Council deliberations on the request.

63. The investigation team shall begin the facility investigation ... hours after the expiration of the [48] hour period established in paragraph 61.]⁵⁴

[Facility] investigations [of any other alleged breach of obligations under the provisions of the Convention]

64. The investigation team may [request to] conduct any or [all] [a combination] of the following on-site activities: interviewing, visual observation, [identification of key equipment,] [auditing,] [medical examination] [and sampling and identification]. These specific on-site activities shall be implemented in accordance with the provisions set out above in this section as well as in Annex ... .

65. In conformity with the relevant provisions of Annex E of this Protocol, the investigated State Party shall have the right to take measures to protect sensitive installations and prevent disclosure of confidential information and data not related to biological and toxin weapons, in accordance with the obligation to demonstrate compliance and the right if necessary to protect sensitive information to take specific measures which may include but are not limited to the following:

(a) Removal of sensitive papers from office spaces and direct view;
(b) Shrouding of sensitive displays, stores, and equipment;
(c) Shrouding sensitive pieces of equipment, such as computer or electronic systems;
(d) Logging off of computer systems and turning off data indicating devices;
(e) Using random selective access techniques whereby the team is requested to select a given percentage or number of buildings of their choice to investigate; the same principle can apply to the interior and content of sensitive buildings or documents;
(f) In exceptional cases, limiting the number of team members who have access to certain parts of the site; and limiting the viewing angle;
(g) Limiting the time investigation team members may spend in any area or building, while allowing the team to fulfil its mandate;
(h) The investigated State Party may at any time during the investigation notify products and processes in which it has a proprietary interest in order to help the team respect the investigated State Party's right to safeguard proprietary information. It may request that if a specific piece of information is released to the team, it should be accorded the most stringent protection measures with the Organization.

66. The investigated State Party shall make every reasonable effort to demonstrate to the investigation team that any object, building, structure, container or vehicle to which the investigation team has not had full access, or which has been protected in accordance with paragraph 65, is not used for purposes related to the possible non-compliance concerns raised in the investigation request.

67. This may be accomplished by means of, inter alia, the partial removal of a shroud or environmental protection cover, at the discretion of the investigated State Party, by means of a visual observation of the interior of an enclosed space from its entrance, or by other methods.]

(H) FINAL REPORT

68. The preparation and handling of the final report shall be conducted in accordance with Annex D, paragraphs ... .

(I) FURTHER CLARIFICATION

69. The [BTWC Organization] [Technical [Secretariat] [Body]] [may] [shall] undertake consultations with the investigated State Party to allow for further clarification including on matters raised by the investigated State Party, if there are remaining uncertainties identified by the investigation team [, or in case the cooperation offered by the investigated State Party is not considered to meet required standards]. [If the uncertainties cannot be removed or if the established facts are of a nature to imply non-compliance with obligations under the Convention, the Technical [Secretariat] [Body] shall convene the [Executive] [Consultative] Council to examine the final report.]

(J) [ADOPTION OF A DECISION ON THE BASIS] [CONSIDERATION]

OF THE FINDINGS OF THE INVESTIGATION

[70. The [Executive] [Consultative] Council shall consider whether there has been any non-compliant activity and take a decision on any response or further action.]

[71. The [Executive] [Consultative] Council shall, in accordance with its powers and functions, review the final report of the investigation team as soon as it is presented, and [address] [decide on] any concern as to]:

(a) Whether any non-compliance has occurred;
(b) Whether the request had been in accordance with the provisions of this Protocol;
(c) Whether the right to request an investigation has been abused.]

72. With respect to any concerns raised under paragraph 71 (c), one or more of the following factors could be taken into account, where relevant:

(a) Information relating to the investigated site available prior to the investigation request (the authenticity and reliability of any information would need to be carefully assessed);

(b) Whether any of the information submitted as part of the investigation request was shown to be false;

(d) Whether any investigation(s) (including any instituted under Article VI of the Convention) had previously been requested by the same State Party vis-à-vis the same investigated site, and if so, their number, frequency and outcome (including any follow-up action);

(e) Whether the same requesting State Party had launched any prior requests for investigation which had been deemed by the [Executive] [Consultative] Council to be frivolous, abusive or beyond the scope of the Convention.

[73. If the [Executive] [Consultative] Council reaches the conclusion, in keeping with its powers and functions, that further action may be necessary with regard to paragraph 71, it shall make specific recommendations to the Conference which shall consider the recommendations in accordance with Article IX and take the appropriate measures in accordance with Article V.]

74. In the case of abuse, the [Executive] [Consultative] Council shall examine whether the requesting State Party should bear any of the financial implications of the investigation. The [[Executive] [Consultative] Council] States Parties [United Nations Security Council] [may] [shall] consider appropriate actions, including [possible] sanctions, in accordance with applicable international law, [by the BTWC Organization] if they decide that a request has been frivolous, abusive or beyond the scope of the [Protocol] [Convention].

[75. The investigated State Party and the requesting State Party shall have the right to participate in the review process but shall have no vote. If the [Executive] [Consultative] Council reaches the conclusion, in keeping with its powers and functions, that further action may be necessary with regard to paragraph 71, it shall take the appropriate measures to redress the situation and to ensure compliance, including specific recommendations to the Conference of States Parties.]

Notes

41. There is no agreement on terminology of investigations. One possible term is "Investigation to Address a Non-Compliance Concern". Another possible term is "Challenge Inspection (under Article VI)".

42. Terms to be used to describe the States Parties involved in investigations have been proposed by a delegation for insertion in paragraphs 2, 4, 6 and 16 (b). Pending agreement on these (or other) terms, they have not been inserted elsewhere in the text.

43. Specific language on this issue for inclusion in the Annex will be formulated drawing on, without prejudice to other possible proposals, BWC/AD HOC GROUP/WP.262, submitted by the Group of NAM and other countries, which was not addressed at the ninth Ad Hoc Group session.

44. A view was expressed that the appropriate placement of this text required further consideration.

45. The inclusion of this section is without prejudice to any final decision on whether such procedures shall be mandatory and/or whether they shall take place prior to the initiation of an investigation.

46. A view was expressed that information supporting a request will be lacking many precise details regarding the essential elements described above. This should not be allowed to prevent an allegation receiving serious consideration. It may be that one single item of evidence will be sufficient to be decisive. The burden of proof must not be placed unreasonably on to the complainant State. Further consideration needs to be given to whether or how these requirements might be modified in respect of a request for an investigation on the territory of another State Party or a non-State Party.

47. Paragraphs 16 to 20 have been reproduced in Annex D, pending a decision on whether they should be placed in the Protocol or in the Annex.

48. Paragraph 18 was proposed by a delegation to replace both paragraph 5 and subparagraph 16 (k). It was not discussed during the eleventh session of the Ad Hoc Group.

49. Paragraph 18 was proposed by a delegation to replace both paragraph 5 and subparagraph 16 (k). It was not discussed during the eleventh session of the Ad Hoc Group.

50. A view was expressed that the issue of the communication of the request to all other States Parties needed further consideration in the light of discussion on the issue of consultation and clarification.

51. A view was expressed that this concept would be better placed in section J.

52. Paragraphs 32 to 35 and paragraph 36 were regarded by some delegations as alternatives.

53. Ibid.

54. Paragraphs 50, the first sentence of paragraph 51 and paragraphs 57 to 63 are taken from BWC/AD HOC GROUP/WP.314. They were not discussed during the twelfth session of the Ad Hoc Group.