Preparatory Commission for the

PC-X/B/WP.4

Organisation for the Prohibition

21 December 1994

of Chemical Weapons

Original:  ENGLISH
   

Tenth Session

(3 - 7 April 1995)

DISCUSSION PAPER BY THE EXECUTIVE SECRETARY

Implementation of paragraph 23 of the Confidentiality Annex:

The Commission for the Settlement of Disputes Related to Confidentiality

Introduction

1.         In its informal discussion paper of 18 July 1994 the Secretariat submitted general considerations on the relationship between Article XIV of the Convention and paragraph 23 of the Confidentiality Annex.  The paper proposed different alternatives for role and character of the "Commission for the settlement of disputes related to confidentiality" (hereinafter referred to as "the Commission").  The present paper elaborates on those propositions and alternatives, taking into account considerations of the Expert Group (Chair non-paper 11 May 1994).

            Relationship between Article XIV of the Convention and paragraph 23 of the             Confidentiality Annex

2.         Text of the provisions

ARTICLE XIV OF THE CONVENTION ON SETTLEMENT OF DISPUTES

"1.        Disputes that may arise concerning the application or the interpretation of this Convention shall be settled in accordance with the relevant provisions of this Convention and in conformity with the provisions of the Charter of the United Nations.

2.         When a dispute arises between two or more States Parties, or between one or more States Parties and the Organisation, relating to the interpretation or application of this Convention, the parties concerned shall consult together with a view to the expeditious settlement of the dispute by negotiation or by other peaceful means of the parties' choice, including recourse to appropriate organs of this Convention and, by mutual consent, referral to the International Court of Justice in conformity with the Statute of the Court.  The States Parties involved shall keep the Executive Council informed of actions being taken.

3.         The Executive Council may contribute to the settlement of a dispute by whatever means it deems appropriate, including offering its good offices, calling upon the States Parties to a dispute to start the settlement process of their choice and recommending a time-limit for any agreed procedure.

4.         The Conference shall consider questions related to disputes raised by States Parties or brought to its attention by the Executive Council.  The Conference shall, as it finds necessary, establish or entrust organs with tasks related to the settlement of these disputes in conformity with Article VIII, paragraph 21 (f)."

PARAGRAPH 23 OF THE CONFIDENTIALITY ANNEX

            This paragraph reads: "For breaches involving both a State Party and the Organisation, a 'Commission for the settlement of disputes related to confidentiality', set up as a subsidiary organ of the Conference, shall consider the case.  This Commission shall be appointed by the Conference.  Rules governing its composition and operating procedures shall be adopted by the Conference at its first session."

                Tasks of the Commission and Relationship to the Conference of the States Parties

3.         According to paragraph 23, the subject matter of the Commission's work shall be:

(a)        disputes on breaches of confidentiality;

            "Breaches of confidentiality" can be understood as actions or defaults inconsistent with norms governing the handling of confidential information which was obtained by the Organisation from States Parties or by States Parties from the Organisation in implementing the provisions of the Convention.

            Disputes may consist in divergent opinions on whether

            (i)         a breach of confidentiality occurred and on its nature;

            (ii)        the Organisation or a State Party is responsible for the breach;

            (iii)       the breach is caused by inappropriate procedures or regulations, their            inappropriate implementation, or by individuals disregarding such        procedures or regulations, or some combination of the above;

(iv)       measures are necessary to remedy a situation and to prevent repetition of such breaches; (this is without prejudice to paragraph 22 of the Confidentiality Annex which exempts the Organisation from liability for any breach committed by a member of the Technical Secretariat). Measures to remedy a situation may include cases when a member of the Technical Secretariat is considered individually responsible, the appropriateness of norms and procedures of the Organisation or the effective functioning of the relevant branches of the Technical Secretariat are to be reviewed, or a State Party be requested to thoroughly implement its obligation under Article VII, paragraphs 6 and 1.

(b)        disputes involving both, a State Party and the Organisation.

            More than one State Party could be involved in the dispute. This could result in:

(i)         disputes with the Organisation on one side and one or more States Parties on the other side or,

(ii)        disputes with the Organisation and one or more States Parties on one side and one or more States Parties on the other side.

(c)        The Commission may also be entrusted with the "settlement of disputes related to confidentiality" other than those under paragraph 23 of the Verification Annex.  This would happen when two or more States Parties are involved in a dispute, but not the Organisation.  The Commission may then act as an "appropriate organ of this Convention" in accordance with paragraph 2 of Article XIV, "Settlement of Disputes".  The rules of procedure should therefore provide for the solution of disputes between two or more States Parties relating to the application or the interpretation of the provisions of this Convention concerning confidentiality.

4.         Relationship to the Conference of the States Parties

The Commission shall submit its findings and recommendations to the Conference.  In an exceptional case where immediate action may be required, it shall submit its findings and recommendations to the Executive Council.  The Conference could then delegate to the Executive Council the authority to act on its behalf.  If the Conference or the Executive Council endorses the recommendations of the Commission, they will become binding on the Organisation.  For States Parties, such recommendations will have the same character as those to be made pursuant to Article XII. [1]

5.         Relationship to other procedures designed for the settlement of disputes.

The Commission will be a specific institution within the alternatives of Article XIV. There is a potential concurrence between the mandate of the Commission and that to be given to the Arbitration Tribunal to be established for facility agreements. Competing action of those two organs should be prevented by a clause prohibiting parties engaged in a procedure to initiate a procedure on the same subject in another organ .


Character of the Commission

6.         The character of the Commission would be that of a political organ subsidiary to the main organ of the Organisation, namely the Conference of the State Parties.  This assumption is supported by the following considerations:

(a)        Paragraph 23 of the Confidentiality Annex determines the position of the Commission "as a subsidiary Organ of the Conference".  This wording is consistent with Article XIV, Settlement of Disputes.  That Article adds to the functions of the Conference in its paragraph 4 "[to] establish or entrust organs with tasks related to the settlement of these disputes in conformity with Article VIII, paragraph 21(f)".

(b)        According to the same paragraph 23, the Commission shall "consider the case".  Such wording does not necessarily imply that the Commission will have to issue decisions which would have the character of judgements of a tribunal.

(c)        The wording in the same paragraph - "This Commission shall be appointed by the Conference."- is somewhat ambiguous.  Since the Commission, according to the first sentence of this paragraph, shall already be "set up" and the word "appointed" relates to individuals rather than to organs, it could only refer to the members of the Commission.  The term "appoint," as it appears elsewhere in the Convention, is only used in regard to individuals [2] .  This is a strong argument against an understanding that only representatives of States Parties, rather than persons acting in their own capacity, should be members of the Commission [3] .

Role and activities of the Commission

7.         The role and the activities attributed to the Commission will influence its character. This will include:

(a)        fact-finding in regard to the disputes and the assessment of those facts;

(b)        attempts to settle these disputes by means of conciliation;

(c)        establishment of breaches of confidentiality and of the responsibility for those breaches;

(e)        assessment of damage caused by those breaches;

(d)        recommendations concerning remedies for the situation and the prevention of the occurrence of similar events.

            Size and composition of the Commission, appointment procedure

8.         Three aspects will be of relevance for size and composition of the Commission: equitable geographical distribution, efficiency and economy.

(a)        Equitable geographical distribution:  If the Commission is a political body, it should be composed in accordance with the principle of equitable geographical distribution, as agreed in the Convention (five regional groupings).

(b)        Efficiency: The requirement of efficiency calls for a limited size of the Commission.  The disputes to be dealt with will require fact-finding with the help of experts, evaluation of facts and assessment of regulations and procedures promulgated either by the Organisation or by States Parties.  The Commission will have to make proposals for the solution of specific disputes brought before it, as well as to make recommendations to the main organs of the Organisation concerning conclusions to be drawn from the dispute under consideration. As already mentioned under 4 (c) above the word "appointed", used in paragraph 23 of the Confidentiality Annex refers to individuals. The subject matter to be dealt with requires that the members of the Commission have, in addition to a high reputation, an outstanding professional background in chemistry and/or international law and sufficient knowledge of the intrinsic complexities of the mandatory international on-site inspection procedure of the Convention.

(c)        Economy: The need of speedy and inexpensive proceedings calls for a relatively small size of the Commission.  Another argument to that end is the need to protect confidential information.  However, its size should allow a composition which represents sufficiently the entire membership of the Organisation.

            In view of these considerations it is proposed to set the number of members of the Commission at eleven: one chairman and two seats for each of the five geographical groups (according to the Convention).  No more than one national of a State Party shall serve on the Commission.

            Two additional persons from each geographical group should be appointed as an alternate members.  The quorum for the Commission should require the presence of at least one member/alternate of each group, in addition to the chairman.

9.         The appointment procedure shall provide for the following:

(a)        the Chair of the Commission should be appointed individually by the Conference upon a proposal of the Executive Council.  The Chair will assume a significant responsibility for objective and unbiased proceedings of the Commission.  The mandate of the Executive Council to propose the candidate for this post will correspond to this responsibility.  The agreement of the Executive Council on such a proposal will increase the probability for a consensus on the appointment of the candidate.  States Parties of each regional group should be entitled to propose candidates for appointment as members or alternates of the Commission.

(b)        all members to the Organisation shall have the right to participate in the ballot on all the candidates presented. This corresponds with the practice to be applied for the election of the members of the Executive Council.

(c)        the term of office should be three years for both members and alternates.  The candidature for a second/additional term should be possible.  As required, an appointment procedure for filling vacancies within this period should be carried out.

(d)        the Commission shall be convened for its constitution following appointment and, thereafter, whenever a request has been lodged.  It shall comprise the Chair and ten members.  If a member is not able to attend a session, an alternate from the same region should participate instead.  A member/alternate shall not participate in an meeting if he/she is a citizen of a State Party of the dispute or in case of any other conflict of interest.  When the Commission is not in session, the Chair shall act on behalf of the Commission wherever appropriate.

- - - o - - -

[1]            Additional tasks to those connected with the settlement of disputes related to confidentiality could be entrusted to the Commission.  First, the Conference could mandate the Commission to review the report of the Director-General to the Conference to be submitted pursuant to paragraph 3 of the Confidentiality Annex.  A position of the Commission on the report would assist the considerations of the Conference.  Second, the measures of the States Parties concerning their obligation to protect confidential information (Article VII, paragraph 6) could be another subject-matter with which the Conference entrusts the Commission. Assessments prepared by the Commission on whether the relevant measures fulfil the requirements could assist the Conference in its overall review of the confidentiality regime of the Organisation.

[2]               See Article VIII, paragraph  21(h), 43, 44, 45, 49.

[3]               See Article VIII, paragraph 21 (c): The Conference shall elect the members of the Executive Council).