Seventh Session

(27 June - 1 July 1994)

NOTE BY THE EXECUTIVE SECRETARY

LEGAL OPINION ON THE PRIVILEGES AND IMMUNITIES

OF INSPECTION TEAM MEMBERS

Pursuant to the request of Working Group B (PC-VI/B/8, subparagraph 11.5), the Legal Adviser has prepared the following opinion which is hereby submitted for consideration by the Expert Group on Challenge Inspection:

"1. Working Group B has requested the Legal Adviser of the Commission to provide an opinion on the relationship between the privileges and immunities for inspection team members to be granted under subparagraph 11(g) of Part II of the Verification Annex and paragraph 1 of Article 36 of the Vienna Convention on Diplomatic Relations.

2. Subparagraph 11(g) of Part II of the Verification Annex of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and On Their Destruction ('Convention') and paragraph 1 of Article 36 of the Vienna Convention on Diplomatic Relations ('Vienna Convention') provide as follows:

Subparagraph 11(g) of Part II of the Verification Annex of the Convention:

'11(g) The members of the inspection team shall be permitted to bring into the territory of the inspected State Party or Host State Party, without payment of any customs duties or related charges, articles for personal use, with the exception of articles the import or export of which is prohibited by law or controlled by quarantine regulations.'

Article 36, paragraph 1, of the Vienna Convention:

'Art. 36. 1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:

(a) articles for the official use of the mission;

(b) articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.'

3. As regards the request contained in subparagraph 11.5 of the Report of Working Group B, it is the opinion of the Legal Adviser that there is no relationship, in strict terms, between subparagraph 11(g) of Part II of the Verification Annex of the Convention and paragraph 1 of Article 36 of the Vienna Convention.

4. Firstly, paragraph 11(g) of Part II of the Verification Annex makes no reference to paragraph 1 of Article 36 of the Vienna Convention.

5. Secondly, the nature of the subject regulated under subparagraph 11(g) of Part II of the Verification Annex is not the same as that under paragraph 1 of Article 36 of the Vienna Convention. To start with, subparagraph 11(g) deals solely with articles for personal use, whereas Article 36, paragraph 1, of the Vienna Convention deals with articles for personal use in subparagraph (b) and with articles for official use in subparagraph (a). Reference to 'articles for official use of the mission' is missing in subparagraph 11(g) simply because this matter is dealt with elsewhere in the same section of Part II of the Verification Annex.

6. In terms of drafting, it is possible also to find another important distinction between the exemptions contained in paragraph 11(g) of Part II of the Verification Annex and those contained in paragraph 1 of Article 36 of the Vienna Convention. In the case of paragraph 11(g), articles for personal use are exempted from payment of any 'customs duties or related charges,' which refers to customs duties and related charges as alternatives, not as complementary to each other. That is not the case in Article 36, paragraph 1, where there is an obligation to 'grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services.' The need for the Vienna Convention to further elaborate this exemption is in response to what is in fact covered by Article 36, subparagraph 1(b) of the Vienna Convention, where there is reference also to a diplomatic agent and 'members of his family forming part of his household, including articles intended for his establishment' -- a situation which is not comparable to that of members of inspection teams entitled to exercise their functions on inspected State Party territory for a very limited period.

7. Finally, one can also argue that subparagraph 11(g) sets forth a right on the part of the members of inspection teams, while Article 36 addresses an obligation on the part of the receiving State.

8. In the opinion of the Legal Adviser, it could be assumed that when the drafters of the Convention introduced a specific reference to the Vienna Convention in a number of paragraphs in Part II of the Verification Annex, it is because they felt a need to have a clear-cut reference, given the relationship between the subject matter involved, as was the case in subparagraphs 11(a), (b), (c), (e), (f), and paragraph 12 of Part II of the Verification Annex. When specific reference to the Vienna Convention was omitted (as in subparagraphs 11(d), (g), (h) and (i), for example), it is because the matters dealt with are not intrinsically the same as those covered by the Vienna Convention."

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