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See also the Privileges and Immunities Agreements and Facility Agreements pages in the Legal section of the OPCW website.
The legal basis for granting privileges and immunities to the OPCW and certain categories of officials (delegates, representatives, alternates, advisers, the Director‑General, staff, and experts) is found in Article VIII (E) of the Convention. The rationale for granting privileges and immunities is the same as that for granting them in bilateral diplomatic relations: they allow relevant individuals to carry out their duties independently, without interference by either the Host State or third parties, and without fear of retribution. The Convention envisages three types of privileges and immunities. First, the OPCW itself is granted “such legal capacity and such privileges and immunities as are necessary for the exercise of its functions” on the territory of a State Party. Second, delegates of States Parties (including alternates and advisers), the Director-General and OPCW staff have “such privileges and immunities as are necessary in the independent exercise of their functions in connection with the [OPCW]”. Finally, the members of OPCW inspection teams form yet another separate group, whose privileges and immunities are specified in Part II, Section B, of the Convention’s Verification Annex.
Except for members of inspection teams, the specific privileges and immunities to be granted to the OPCW, its officials and delegates are not enumerated in the Convention. The Convention provides that these shall be defined in agreements between the OPCW and the States Parties and in a headquarters agreement. The headquarters agreement has been concluded with the Netherlands. Privileges and immunities agreements have been approved for conclusion with Denmark, Ghana, Greece, Kenya, Latvia, Panama, Portugal, Republic of Korea, and the United Kingdom of Great Britain and Northern Ireland. Negotiations are ongoing with a number of other States Parties. Negotiations are carried out on the basis of a basic text. The basic text accords functional privileges and immunities to the OPCW and, in varying degrees, to the representatives of States Parties to the organisation, as well as national experts participating in OPCW meetings and to the Director-General and staff. These functional privileges and immunities are consistent with those customarily granted to other international organisations and their delegates and staff.
Basic text for bilateral agreements on privileges and immunities under Article VIII, paragraph 50, of the Convention
Privileges and immunities of inspection team members
During an initial inspection at a facility or plant site, one of the tasks of an inspection team is to begin work on a facility agreement which will govern all future inspections at that facility or plant site. Such agreements are required for all chemical weapons-related facilities, facilities producing Schedule 1 chemicals, and Schedule 2 plant sites. With respect to the last category, however, the Secretariat and the inspected State Party can agree that an agreement is not necessary for a particular site. For plant sites producing Schedule 3 chemicals or unscheduled discrete organic chemicals, a facility agreement is not normally needed, although the inspected State Party may request one. Facility agreements are negotiated between the Secretariat and the inspected State Party, and are then submitted to the Executive Council for its approval.
Chemical weapons-related agreements. Facility agreements for chemical weapons facilities can be divided into three main categories, corresponding to the type of facility – those for chemical weapons storage, production and destruction, respectively. These agreements govern inspections at the facilities and include provisions to take account of future technological developments. The contents of facility agreements are also dictated by the verification measures and activities specified by the Convention for each type of facility concerned, and by relevant decisions taken by the Conference of the States Parties.
Schedule 1 facility agreements. Several types of Schedule 1 facilities are permitted by the Convention. States Parties may operate one single small-scale facility (SSSF) for the production of Schedule 1 chemicals for “research, medical, pharmaceutical or protective purposes”. They may also operate: (a) one protective purposes facility; (b) facilities producing Schedule 1 chemicals in quantities of between 100 g and 10 kg per year per facility for research, medical or pharmaceutical purposes; and (c) laboratories synthesising Schedule 1 chemicals in aggregate quantities of less than 100 g per year per facility for research, medical or pharmaceutical purposes (these facilities are exempt from any declaration and verification obligation under Part VI of the Convention).
Facility agreements for Schedule 2 plant sites. Schedule 2 plant sites are unlike Schedule 1 facilities in that the Convention imposes no restrictions on the amounts of Schedule 2 chemicals that can be produced (or otherwise handled) at plant sites. Although Schedule 2 plant sites are involved in the manufacture of a variety of products (from paint to fertiliser), they have one thing in common - they are industrial facilities. One difference in the nature of the facilities, however, has a great impact on discussions related to facility agreements. Plants producing Schedule 2 chemicals are frequently part of large industrial complexes (plant sites) that produce several different chemicals. Accordingly, there is frequently some discussion regarding which elements of the declared Schedule 2 plant and the plant site infrastructure are relevant enough to be considered part of the plant for the OPCW’s verification purposes. Moreover, there are situations in which the inspection team will need access to locations beyond the declared Schedule 2 plant. The Convention provides for such access in accordance with procedures to be established in the relevant facility agreement (or, if they cannot be established, with the managed access procedures set out in Part X(C) of the Verification Annex). Another related issue that has been the subject of much recent debate is the frequency of inspections at Schedule 2 plant sites.
Negotiations. A wide range of issues may be addressed during the discussions on an individual facility agreement, but certain issues tend to arise in almost every case. Health and safety requirements, for example, are often the subject of extended consideration. In this area, States Parties are naturally anxious to ensure that inspection teams abide by the health and safety regulations applicable at the facility in question. The Secretariat also wishes to ensure that the members of an inspection team can carry out their activities in a manner that does not jeopardise their health and safety. On the other hand, the Secretariat must also ensure that the inspected State Party is not using health and safety concerns to prevent the inspection team from carrying out their verification activities required in the inspection mandate.
Also commonly the subject of extensive discussion are arrangements related to the protection of confidential information. Facility management obviously wishes to protect confidential military or industrial information, while at the same time it is obliged to demonstrate compliance by granting the inspection team access to information to which it is entitled under the Convention. The balance between these rights is carefully negotiated in the discussions on the facility agreement. There is also normally some discussion on inspection equipment. Although the inspection team has the right to bring on site any item of approved OPCW equipment, it is naturally willing to use any equipment that can be provided by the facility, provided that it meets with OPCW standards and specifications. Other issues of concern are the location of sampling points at the facility and arrangements for the analysis of samples. Finally, facility agreements address the practical administrative arrangements relating to inspections, for example, the type of transport that will be provided by the inspected State Party, and the working rooms and accommodation to be provided for inspection team members. Reaching agreement on these administrative arrangements greatly facilitates subsequent inspections.
Approved Models:
Extract from the Report of the Fourth Session of the Conference of the States Parties (C-IV/6, dated 2 July 1999):
12.2 The Conference took the following action on the basis of recommendations and decisions of the Council:
(c) Model facility agreements
The Conference, in accordance with the decisions of the Council at its Fourteenth and Fifteenth Sessions, as well as with the procedure for addressing unresolved issues (C?III/DEC.11, dated 20 November 1998), considered and confirmed the decisions on a model facility agreement for chemical weapons storage facilities and a model facility agreement for chemical weapons production facilities (respectively C-IV/DEC.12, dated 29 June 1999, and C?IV/DEC.13, dated 29 June 1999). In confirming these decisions the Conference noted subparagraph 7.2 of the report of the Fourteenth Session of the Council (EC-XIV/2, dated 2 February 1999) and subparagraph 11.2 of the report of the Fifteenth Session of the Council (EC?XV/3, dated 29 April 1999).
Extract from the Report of the Fourteenth Session of the Executive Council (EC-XIV/2, dated 2 February 1999):
7.2 During the present session of the Council, some concerns were expressed about the implications of the approval of the model facility agreement for chemical weapons storage facilities, for the already approved facility agreements and/or arrangements. The decision is not to be interpreted as to oblige the States Parties to modify the approved facility agreements and/or arrangements on the basis of the model. The Council requested the Secretariat to conclude as rapidly as possible the substantive negotiations ongoing at the time of the approval of the decision either on the basis of the model, or on the basis of text already under discussion in these negotiations, bearing in mind that a State Party may choose at a later time to enter into negotiations with the Secretariat to amend any of the State Party's approved facility agreements and/or arrangements as required and desired to more closely follow the general form and content of the model facility agreement, in accordance with the provisions of paragraph 8 of Part III of the Verification Annex, and submit this amended agreement to the Council for approval. States Parties remain free either to draw upon the approved facility agreements and/or arrangements or to depart from them, where they deem appropriate, provided that the new facility agreements conform with the provisions of the Convention and so long as they retain the general form and content of the model facility agreement.
Extract from the Report of the Fourth Session of the Conference of the States Parties (C-IV/6, dated 2 July 1999):
12.2 The Conference took the following action on the basis of recommendations and decisions of the Council: …
(c) Model facility agreements
The Conference, in accordance with the decisions of the Council at its Fourteenth and Fifteenth Sessions, as well as with the procedure for addressing unresolved issues (C?III/DEC.11, dated 20 November 1998), considered and confirmed the decisions on a model facility agreement for chemical weapons storage facilities and a model facility agreement for chemical weapons production facilities (respectively C-IV/DEC.12, dated 29 June 1999, and C?IV/DEC.13, dated 29 June 1999). In confirming these decisions the Conference noted subparagraph 7.2 of the report of the Fourteenth Session of the Council (EC-XIV/2, dated 2 February 1999) and subparagraph 11.2 of the report of the Fifteenth Session of the Council (EC?XV/3, dated 29 April 1999).
Extract from the Report of the Fifteenth Session of the Executive Council (EC-XV/3, dated 29 April 1999):
11.2 During the present session of the Council, some concerns were expressed about the implications of the approval of the model facility agreement for chemical weapons production facilities, for the already approved facility agreements and/or arrangements. The decision is not to be interpreted as to oblige the States Parties to modify the approved facility agreements and/or arrangements on the basis of the model. The Council requested the Secretariat to conclude, as rapidly as possible, the substantive negotiations ongoing at the time of the approval of the decision either on the basis of the model, or on the basis of text already under discussion in these negotiations, bearing in mind that a State Party may choose at a later time to enter into negotiations with the Secretariat to amend any of the State Party's approved facility agreements and/or arrangements as required and desired to follow more closely the general form and content of the model facility agreement, in accordance with the provisions of paragraph 8 of Part III of the Verification Annex, and submit this amended agreement to the Council for approval. States Parties remain free either to draw upon the approved facility agreements and/or arrangements or to depart from them, where they deem appropriate, provided that the new facility agreements conform with the provisions of the Convention and so long as they retain the general form and content of the model facility agreement.
Extract from the Report of the Fourth Session of the Conference of the States Parties (C-IV/6, dated 2 July 1999):
12.2 The Conference took the following action on the basis of recommendations and decisions of the Council: …
(c) Model facility agreements
The Conference, in accordance with the decisions of the Council at its Fourteenth and Fifteenth Sessions, as well as with the procedure for addressing unresolved issues (C?III/DEC.11, dated 20 November 1998), considered and confirmed the decisions on a model facility agreement for chemical weapons storage facilities and a model facility agreement for chemical weapons production facilities (respectively C-IV/DEC.12, dated 29 June 1999, and C?IV/DEC.13, dated 29 June 1999). In confirming these decisions the Conference noted subparagraph 7.2 of the report of the Fourteenth Session of the Council (EC-XIV/2, dated 2 February 1999) and subparagraph 11.2 of the report of the Fifteenth Session of the Council (EC?XV/3, dated 29 April 1999).
Extract from the Report of the Fifteenth Session of the Executive Council (EC-XV/3, dated 29 April 1999):
11.2 During the present session of the Council, some concerns were expressed about the implications of the approval of the model facility agreement for chemical weapons production facilities, for the already approved facility agreements and/or arrangements. The decision is not to be interpreted as to oblige the States Parties to modify the approved facility agreements and/or arrangements on the basis of the model. The Council requested the Secretariat to conclude, as rapidly as possible, the substantive negotiations ongoing at the time of the approval of the decision either on the basis of the model, or on the basis of text already under discussion in these negotiations, bearing in mind that a State Party may choose at a later time to enter into negotiations with the Secretariat to amend any of the State Party's approved facility agreements and/or arrangements as required and desired to follow more closely the general form and content of the model facility agreement, in accordance with the provisions of paragraph 8 of Part III of the Verification Annex, and submit this amended agreement to the Council for approval. States Parties remain free either to draw upon the approved facility agreements and/or arrangements or to depart from them, where they deem appropriate, provided that the new facility agreements conform with the provisions of the Convention and so long as they retain the general form and content of the model facility agreement.