5.         At first glance, one could be tempted to hold the staff member responsible to the plaintiff for a breach of confidentiality. [2]   However, this approach seems unworkable because, at most, the staff member concerned would only have his or her Provident Fund entitlement or pension (which could amount to a few dozens of thousands of dollars) to compensate for the damages due to the breach of confidentiality.  And if the staff member has dependants, part of the monies could be unavailable to satisfy the plaintiff's claim.  This situation would prove rather awkward vis-à-vis the possibility that compensation for damages due to a breach of confidentiality could seemingly imply an amount of several hundred thousand dollars, to say the least.

6.         One possible option that would render compensation viable is for States Parties to accept responsibility for any breach of confidentiality through act or omission by an OPCW staff member, causing damage to natural or legal persons located in the State Party's territory or in any place under its jurisdiction or control.  The State Party would thus be the respondent and would be held liable to pay compensation for any damages awarded in civil proceedings brought by the plaintiff in that State Party's courts.  However, if States Parties assume such liability, their own legal system will require them, in most cases, to enact specific legislation for that purpose.  Furthermore, this State Party liability could, in some cases, be associated to a complementary action by that State Party to look for compensation elsewhere.

7.         It could be argued that States Parties, in creating an international Organization which they have made non-liable, cannot be exonerated from any responsibility when that Organisation's activities cause damage to the interests of natural or legal persons.  In principle, members of an international Organization collectively bear full responsibility for the functioning of the Organization and that responsibility entails liability.

8.         As long as States Parties under the Convention undertake to submit their military and civilian chemical facilities relevant to the Convention to the international verification system contained therein, there is more than a residual responsibility of the States Parties for breach of confidentiality by the Organisation's agents on their territory or in any place under their jurisdiction or control.  In this case it would be an objective responsibility of the State Party where the plaintiff is located, given the non-liability of the Organization for the breach.  But, above all, it is customary for a State to always be responsible vis-à-vis operators or owners of facilities in case there are claims against any activity undertaken with the full authorisation of the government. 

9.         In addition, any breach of confidentiality would arise from the activities carried out by the OPCW with the consent of each State Party within the context of the bilateral agreement and facility agreement(s) that it will have concluded with the OPCW in accordance with the Convention.  The responsibility of a State Party for the loss of confidential information can arise, when the State Party in its negotiation with the Organisation does not use sufficiently the possibilities given by the facility agreement to protect confidential information.  To a large extent, this could be avoided if the State Party involves the management of a facility duly in the elaboration and application of such an agreement, as it is foreseen in several implementation acts.  It is also understood that the right of any State Party to monitor all verification activities carried out by the OPCW on its territory or in any place under its jurisdiction or control creates for that State Party a kind of vicarious responsibility for the conduct of the verification activities.

10.       If the plaintiff's State Party were not liable, no other option would appear to be practical.  Other scenarios would give rise to the problem of conflicts of jurisdiction which could be aggravated in cases where the interests of licensors and licensees collide, or the mobility of the tort-feasor implies more than two States Parties with a different degree of responsibility or simply a State not Party. 

 11.            Although much broader in scope, the option for plaintiff's State Party responsibility has been chosen by the Federal Republic of Germany in its Chemical Weapons Convention national implementing legislation on matters related to international inspections.  Article 14 of the Ausführungsgesetz zu dem Übereinkommen vom 13. January 1993 of 2 August 1994 provides that the Federal Republic of Germany assumes responsibility for damages caused by acts or omissions of a member of an inspection team.  As far as it is known, a similar approach is also applied in NATO members' related legislation.

12.       Other examples, though less relevant, can be found in the 1972 Convention on International Liability for Damage Caused by Space Objects or the bilateral agreements concluded between the United Nations or Specialised Agencies and Members of the United Nations or Specialised Agencies on matters concerning procurement of technical assistance.  These agreements attribute responsibility to the States Parties concerned for dealing with claims arising from  implementation of them. 

13.       One possible way to establish erga omnes a principle recognising the responsibility of the plaintiff's State Party within the context of the Convention would require agreement between States Parties or signatory States entitled to become States Parties on the procedure and on the content of the principle itself, without prejudice to enacting specific legislation for that purpose in their national legislation.

14.       From the point of view of procedure, given the silence of the Convention, there would be a need to prepare a draft resolution for the consideration and approval of the First Conference of the States Parties whereby States Parties will recognise the principle of responsibility of the plaintiff's State Party.  In addition, they will also commit themselves to including that principle  in the bilateral agreement that  each State Party will have to conclude with the OPCW in accordance with Article VIII, paragraphs 48 and 50.

15.            Regarding the content of the principle itself, signatory States are advised to tentatively consider the following text for inclusion in the draft resolution:

            "States Parties shall assume responsibility for making recompense for damage inflicted on persons located in its territory or in any other place under its jurisdiction and control resulting from breaches of confidentiality committed by members of the Technical Secretariat carrying out the verification activities of the Organisation for the Prohibition of Chemical Weapons, and for which the Organisation shall not be held liable, pursuant to paragraph 22 of the Annex on Confidentiality of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction."

III.       Penal Action

16.            Paragraph 20 of the Confidentiality Annex makes a distinction between a breach and "a serious breach" of confidentiality committed by staff members of the OPCW.  In the first case, the Director-General will take action against the staff member concerned and impose whatever punitive and disciplinary measures as may be appropriate.  However, faced with a serious breach of confidentiality, the immunity from jurisdiction may be waived by the Director-General upon request so that penal measures could be taken against the staff member.

17.            Although such cases will certainly be rare, it should be recognised that the first problem States Parties will have to overcome is one of jurisdiction.  More than one State Party could assert jurisdiction to prosecute the OPCW staff member accused of a serious breach of confidentiality.  Nonetheless, different aspects are involved in this approach, in particular, the qualification of a breach of confidentiality relating to information as a criminal act under the national criminal law. [3]

18.       Such conflicts of jurisdiction in the penal process, and the delay they would entail, are to be avoided, for obvious reasons.  One possible option would be to have an appropriate jurisdiction for the institution of penal action.  This would prevent the possibility of legal safe havens (other than States not Party) and would allow the harmonisation of criteria and fairness between States Parties since the State Party applying its jurisdiction would be less likely to have an interest in protecting the staff member concerned on grounds of nationality or otherwise.

19.       One way to implement the appropriate jurisdiction would be to obtain the consent of all States Parties, probably in the form of a treaty, that in principle they will not exercise their own jurisdiction on the understanding that another State Party will exercise its own jurisdiction.  All States Parties would also have to confirm their cooperation and assistance to the State Party applying its own jurisdiction.  In accordance with Article VII, paragraph 7, of the Convention and paragraph 21 of the Confidentiality Annex, such cooperation and assistance would extend to extradition, provision of evidence where applicable, or execution of sanctions, including the possible transfer of the prisoner, once convicted, to the authorities of the State Party of which he or she is a national to serve sentence there, provided that the comparability of sanctions is met.

20.       The State hosting the OPCW Headquarters could be in a better position to offer its jurisdiction, if it agrees to bear this burden, since the common denominator to all staff members is that they are residing in the Netherlands.  However, the applicability of a appropriate jurisdiction in The Hague would require a bilateral agreement between the OPCW and the Host State setting forth the framework for the effective operation of its jurisdiction over all penal actions for breach (detention, trial, appeal process, and the corresponding financial implications) as well as the enforcement of judgements against staff members found guilty.

21.       To formalise the establishment of an appropriate jurisdiction, a paragraph could be included in the above mentioned draft resolution for consideration and approval of the First Conference of the States Parties, stating the consent of all States Parties concerning the applicability of the surrogate jurisdiction in the city of The Hague, seat of the OPCW Headquarters.  Furthermore, States Parties would also commit themselves in a separate instrument to registering their recognition of that surrogate jurisdiction and to providing to the State Party applying its jurisdiction whatever cooperation and legal assistance is necessary to facilitate the operation of the  appropriate jurisdiction in The Hague, in conformity with Article VII, paragraph 7, as well as paragraph 21 of the Confidentiality Annex.

IV.            Liability for damage arising from illegal acts not related to breach of confidentiality

22.       The OPCW is explicitly non-liable for breach of confidentiality.  The OPCW could, however, share liability for other illegal acts committed by its organs or agents in the territory or in any place under the jurisdiction or control of a State Party. Possible examples could be, inter alia, injury to a third party other than due to breach of confidentiality or damage to the environment, either by intention (dolus) or by negligence (culpa).

23.            Although the Organisation will always preserve its immunity from jurisdiction, the possibility of compensating third parties for damage should not be excluded when it is determined that such damage was due to breach of legal duty not related to breach of confidentiality.  Of course payment of compensation would not be the appropriate form of reparation, but the Organisation should be prepared to offer other forms of formal satisfaction.  As some experts in international law qualify it, such award of compensation for illegal acts could be sometimes described as "moral" or "political" reparation.  In fact, it could be recognised as joint responsibility of the Organisation and the State Party where the plaintiff is located for an illegal breach of duty by dolus or culpa of one of the Organisation's agents.  Joint responsibility seems justifiable because the OPCW, as an international Organisation, will operate under international law and there is a need for each State Party to fully guarantee to the natural and legal persons located in its territory that any damage not related to breach of confidentiality will also receive reparation.  The German Convention implementing legislation cited above also covers this eventuality.

24.       Taking into account that the privileges and immunities which will be enjoyed by the Organisation will be granted as "are necessary for the exercise of its functions" (Article VIII, paragraph 48 in fine), the OPCW should be prepared to have a mechanism to reach final settlement of claims brought against it by a third party national of one State Party on account of damage to persons or property not related to breaches of confidentiality resulting from the operation of the Organisation's organs or agents in the territory or in a place under the jurisdiction or control of the State Party.  Preparation by the Organisation for such an eventuality would be without prejudice to its privileges and immunities in accordance with the Convention.

25.            Impartial resolution of claims not related to breach of confidentiality could be reached by establishing an Arbitration Tribunal in The Hague.  This Tribunal could also have jurisdiction to deal with any disputes of private law arising from the implementation of the OPCW Headquarters Agreement in the host State. 

26.       This mechanism could be agreed through the above mentioned draft resolution by including another paragraph referring to the full endorsement by States Parties of the establishment of the Arbitration Tribunal to which will be submitted all third party claims against the Organisation for damages arising from acts or omissions, other than breach of confidentiality, by the Organisation's organs or agents.

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