Eighth Session

(26 - 30 September 1994)

NOTE BY THE EXECUTIVE SECRETARY

LEGAL OPINION ON THE RELATIONSHIP BETWEEN

PARAGRAPH 11 OF PART II OF THE VERIFICATION ANNEX AND

ARTICLE 36 OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS

Pursuant to the request of Working Group B (subparagraph 2.8(f) of PC-VII/B/2), the Legal Adviser has prepared the following opinion which is hereby submitted for consideration by the Expert Group on Inspection Procedures:

"1. Working Group B has requested the Legal Adviser of the Commission to provide an opinion on the relationship between paragraph 11 of Part II of the Verification Annex and Article 36 of the Vienna Convention on Diplomatic Relations in regard to approved equipment carried by the inspection team.

2. Paragraph 11 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 ('CWC') and Article 36 of the Vienna Convention on Diplomatic Relations ('Vienna Convention') provide as follows:

Paragraph 11 of Part II of the Verification Annex of the CWC:

'11. To exercise their functions effectively, inspectors and inspection assistants shall be accorded privileges and immunities as set forth in subparagraphs (a) to (i). Privileges and immunities shall be granted to members of the inspection team for the sake of this Convention and not for the personal benefit of the individuals themselves. Such privileges and immunities shall be accorded to them for the entire period between arrival on and departure from the territory of the inspected State Party or Host State, and thereafter with respect to acts previously performed in the exercise of their official functions.

(a) The members of the inspection team shall be accorded the inviolability enjoyed by diplomatic agents pursuant to Article 29 of the Vienna Convention on Diplomatic Relations of 18 April 1961.

(b) The living quarters and office premises occupied by the inspection team carrying out inspection activities pursuant to this Convention shall be accorded the inviolability and protection accorded to the premises of diplomatic agents pursuant to Article 30, paragraph 1, of the Vienna Convention on Diplomatic Relations.

(c) The papers and correspondence, including records, of the inspection team shall enjoy the inviolability accorded to all papers and correspondence of diplomatic agents pursuant to Article 30, paragraph 2, of the Vienna Convention on Diplomatic Relations. The inspection team shall have the right to use codes for their communications with the Technical Secretariat.

(d) Samples and approved equipment carried by members of the inspection team shall be inviolable subject to provisions contained in this Convention and exempt from all customs duties. Hazardous samples shall be transported in accordance with relevant regulations.

(e) The members of the inspection team shall be accorded the immunities accorded to diplomatic agents pursuant to Article 31, paragraphs 1, 2 and 3, of the Vienna Convention on Diplomatic Relations.

(f) The members of the inspection team carrying out prescribed activities pursuant to this Convention shall be accorded the exemption from dues and taxes accorded to diplomatic agents pursuant to Article 34 of the Vienna Convention on Diplomatic Relations.

(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.

(h) The members of the inspection team shall be accorded the same currency and exchange facilities as are accorded to representatives of foreign Governments on temporary official missions.

(i) The members of the inspection team shall not engage in any professional or commercial activity for personal profit on the territory of the inspected State Party or the Host State.'

Article 36 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.

2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this Article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorised representative.'

3. As expressed in the legal opinion on the privileges and immunities of inspection team members (PC-VII/4), there is no relationship, in strict terms, between paragraph 11 of Part II of the Verification Annex and Article 36 of the Vienna Convention.

4. The drafters of the CWC explicitly established a relationship between certain provisions of paragraph 11 and the Vienna Convention, namely: sub-paragraphs 11(a) and Article 29; sub-paragraph 11(b) and Article 30, paragraph 1; sub-paragraph 11(c) and Article 30, paragraph 2; sub-paragraph 11(e) and Article 31, paragraphs 1, 2 and 3; and sub-paragraph 11(f) and Article 34 of the Vienna Convention.

5. Although sub-paragraph 11(d) stipulates the inviolability of samples and approved equipment carried by members of the inspection team, this inviolability is subject to provisions contained in the CWC. The fact that sub-paragraph 11(d) omits any reference to the Vienna Convention including, a fortiori, Article 36, implies the recognition that the limited inviolability as contained in that sub-paragraph differs from the inviolability provided for in the Vienna Convention.

6. Hence it could be concluded that, in the view of the drafters of the CWC, the matters dealt with in paragraph 11 of Part II of the Verification Annex are not intrinsically the same as those covered by Article 36 of the Vienna Convention."

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