Preparatory Commission for the                                 PC-XIV/B/4            
Organisation for the Prohibition                               12 June 1996          
of Chemical Weapons                                            Original:  ENGLISH    
                                                                                     

(22 - 26 July 1996)

NOTE BY THE EXECUTIVE SECRETARY

WORKSHOP ON LEGAL ASPECTS OF BREACHES OF CONFIDENTIALITY

1. Introduction

In the "Background Paper by the Secretariat on the Pending Tasks of the [Confidentiality Expert] Group" dated 15 February 1996, the Secretariat first announced its intention to hold a workshop on breaches of confidentiality. In Part III of the Annex to the subsequent Report of the Thirteenth Session of the Commission (PC-XIII/18), the Fourteenth Session of the Commission was scheduled to be followed consecutively by two workshops: one on legal aspects of breaches of confidentiality, and one on National Authorities. In accordance with the Commission's decision at its Thirteenth Session, the Workshop on Legal Aspects of Breaches of Confidentiality will take place at the Carel Willink Hall on 26 July 1996, commencing at 10 a.m., and will be of half a day's duration.

2. Workshop topics

The workshop will address the remaining tasks of the Expert Group on Confidentiality as follows:

(a) States Parties' possible exercise of national jurisdiction in the event that immunity from jurisdiction is waived by the Director-General in the case of a serious breach of confidentiality by a staff member of the Technical Secretariat, including the possibility of concurrent jurisdiction;

(c) any further proposals relating to the general issue of the application of national jurisdiction to natural or legal persons who have breached confidentiality; and

(c) any further proposals that may be made concerning compensation for losses caused by breach of confidentiality.

3. Financial liability for breach of confidentiality

3.1 Under paragraph 22 of the Confidentiality Annex, the OPCW will not be liable for any damage caused by a breach of confidentiality by its employees. In most cases it will also not be possible to gain adequate compensation from an offending staff member.

3.2 The solution that seems most reasonable to the Secretariat is the acceptance of liability by the national State of the facility which has suffered damage due to a breach of confidentiality, on the basis of the fact that the same national State shared responsibility for creating the Organisation and consequently for the conduct of inspections of facilities on its national territory. Such an approach, which has been followed by other regional multilateral organisations, will provide credibility and predictability in the deterrence of potential offenders.

3.3 One Member State has already made such a commitment in its own implementing legislation. Any such unilateral undertaking is useful, but unless such a solution becomes uniform and universal, it may still act in favour of safe havens for offending officials.

3.4 Special solutions will also have to be found for addressing certain procedural aspects of the problem of breaches of confidentiality, such as an extended time lapse between the breach and its discovery, damage to more than one entity, and the involvement of more than one official in a single breach. Such procedural aspects may raise problems with regard to the identity of the liable State Party and the jurisdiction to be exercised.

4. Criminal jurisdiction

4.1 Paragraph 20 of the Confidentiality Annex implies that States Parties will have to create criminal jurisdiction at least in cases of serious breaches of confidentiality. The possible transnational character of such breaches may raise serious problems of conflicts of jurisdiction, lack of uniformity in punishments, and lack of extradition.

4.2 The solution suggested by the Secretariat is the creation of a single criminal jurisdiction to operate in cases of breaches of confidentiality. The Host Country seems the most suitable place for such jurisdiction.

4.3 Certain procedures will have to be developed by the Secretariat to implement this solution, the central element in which will be the waiver of immunity by the Director-General.

5. The panel of speakers for the workshop

The panel for this workshop will consist of the following: Dr. P. S. Rao, Joint Secretary, Legal Affairs and Treaties Division of the Ministry of External Affairs of India and member of the International Law Commission; Prof. H. J. Schermers, Professor of International Law at Leiden University; and Mr. P. Mason, Attorney/Legal Adviser at the Office of the General Counsel of the Arms Control and Disarmament Agency of the United States of America.

6. Workshop materials

The workshop agenda is attached to this Note. For reference purposes, the following materials are distributed together with this Note: a copy of the background paper dated 15 February referred to in paragraph 1 of this Report (including its attachments in the form of extracts from scholarly papers on the subject of this workshop), as well as of "Breaches of Confidentiality: Liability for Damages and Prosecution through Penal Action" (PC-X/B/WP.3 and Corr. 1).

Attachment

WORKSHOP ON LEGAL ASPECTS OF BREACHES OF CONFIDENTIALITY

26 July 1996

AGENDA

1. Opening of the workshop.

2. "Private Industry Perspectives in Breaches of Confidentiality", presented by Mr. P. Mason.

3. "The Responsibility of International Organisations", presented by Prof. H. J. Schermers.

4. "The Responsibility of States Parties", presented by Dr. P. S. Rao.

5. A discussion and comments by participants.

6. Concluding remarks by members of the panel.

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