3.         The responsibility of States Parties, to the extent possible, to cooperate with and support the Director-General's investigation of an alleged breach

3.1       The Group observed that, in accordance with the Convention (Confidentiality Annex, paragraph 21), "States Parties shall, to the extent possible, cooperate and support the Director-General in investigating any breach or alleged breach of confidentiality and in taking appropriate action in case a breach has been established." 

3.2       The Group agreed that the nature of support and co-operation by States Parties would be determined on a case by case basis.  The Group accordingly concluded that it would not be necessary for the Group to elaborate possible means of support and co-operation as an element of the draft OPCW Policy on Confidentiality.

4.         States Parties' possible exercise of national jurisdiction in the event that immunity from jurisdiction is waived by the Director-General in case of serious breach of confidentiality by a staff member of the Technical Secretariat

4.1       The Convention (Confidentiality Annex, paragraphs 20 and 21) presumes that jurisdiction should apply in the event of immunity from jurisdiction being waived in respect of a staff member of the Technical Secretariat who has committed a serious breach of confidentiality. 

4.2       The Group noted that this particular case might give rise to circumstances in which national jurisdiction cannot be or is not exercised against individual staff members who have committed a serious breach.  This could lessen the deterrent effect on staff members that would be provided by a consistent and comprehensive legal response to serious breaches.

4.3       Seeking to ensure that the confidentiality obligations of staff members are comprehensively enforced, the Group requested that consultations continue on a suggestion that a concurrent enforcement of jurisdiction could possibly be established in the Host State so as to cover a serious breach of confidentiality by any staff member.  The Group made this request on the understanding that any such jurisdiction would be concurrent to States Parties' own national jurisdiction, and would not diminish the rights and responsibilities of States Parties.  Several Member States reserved their judgement, at this stage, on whether or not such a concurrent enforcement of jurisdiction is desirable and whether other possibilities should be considered.

5.         The possibility of States Parties accepting responsibility for compensation for losses incurred as a result of a breach of confidentiality

5.1       The Group discussed the Executive Secretary's proposal for States Parties to assume liability in respect of losses incurred on their territory through a breach of confidentiality in the course of the implementation of the Convention (PC-X/B/WP.3, paragraphs 6-15).  A number of delegations indicated that such a general assumption of liability can not be considered as a basis for resolving this issue, as having no legal basis within the provisions of the Convention.  The Group noted that the problem of satisfying the claims of individuals of one State in respect of injury suffered due to the acts or omissions of another State or an international organisation was not unique to the regime of the Chemical Weapons Convention.  The Group noted that the problem is one which can be addressed as it arises, by applying existing principles of public international law and private international law and by using the disputes resolution mechanisms provided for in the Convention. 

5.2       With regard to Section IV of the Executive Secretary's Discussion Paper (PC-X/B/WP.3), the Group concluded that it did not have a mandate to consider the issue of possible compensation for other forms of damage that occur in the performance of Convention obligations, and that are not caused by a breach of confidentiality. 

6.         States Parties' possible exercise of jurisdiction against legal or natural persons breaching confidentiality, other than in paragraph 4 above

            The question was raised concerning the possible responsibility of States Parties to apply national jurisdiction in relation to breaches of confidentiality committed by a natural or legal person of the State Party other than staff members of the Technical Secretariat.  The Group agreed to review any further proposals made to it on this issue.

7.         Composition and operating procedures of the Confidentiality Commission

7.1       The Group continued its discussion of general principles that might apply to the composition and operation of the Commission for the Settlement of Disputes Relating to Confidentiality ("the Confidentiality Commission"). The following propositions emerged from that discussion:

(a)        that the function of the Confidentiality Commission would be to resolve disputes arising from a breach or breaches of confidentiality involving both a State Party and the Organisation, and that its composition and operating procedures should be governed by this essential function;

(b)        that the Conference of the States Parties may elect to utilise the Confidentiality Commission in the resolution of disputes relating to confidentiality beyond the function identified in subparagraph 7.1(a) above;

(c)        that, if two or more States Parties are in dispute in relation to confidentiality, they may also elect, by mutual consent, to utilise the Confidentiality Commission for the resolution of their dispute;

(d)        that the Confidentiality Commission should be operationally effective, efficient and economical in its requirement for resources;

(e)        that the process of nomination to the Confidentiality Commission should be open to any State Party; that States Parties should propose nominations with the highest standards of efficiency, competence and integrity; and that participation should equitably reflect the geographic make-up of States Parties to the Convention, as well as serving to secure the confidence of the disputing parties;