Privileges and Immunities of the OPCW

The legal basis for granting privileges and immunities to the OPCW and certain categories of officials (delegates, representatives, alternates, advisers, the Director-General, staff, and experts) is found in Article VIII (E). The rationale for granting privileges and immunities is the same as that for granting privileges and immunities in bilateral diplomatic relations: such privileges and immunities allow the individuals to carry out their duties independently, without interference by either the Host State or third parties, and without fear of retribution. The Convention envisages three types of privileges and immunities: (1) the OPCW itself is granted “such legal capacity and such privileges and immunities as are necessary for the exercise of its functions” on the territory of a State Party; (2) delegates of States Parties (including alternates and advisers) and the Director-General and staff have “such privileges and immunities as are necessary in the independent exercise of their functions in connection with the [OPCW]”; and (3) inspection team members are yet another separate group whose privileges and immunities are “those set forth in Part II, Section B, of the Verification Annex”.

An examination of the Convention suggests five distinct scenarios in which the privileges and immunities of the OPCW and specific categories of its officials could be invoked. The treatment of the Organisation and its officials, as well as of delegates of States Parties, will vary depending on the specific scenario.

In this section:

A. On the territory and in any other place under the jurisdiction or control of States Parties

Except for members of inspection teams, the specific privileges and immunities to be granted to the OPCW, its officials and delegates are not enumerated in the Convention. The Convention provides only that these shall be defined in agreements between the OPCW and the States Parties concerned. It is implicit in the last sentence of paragraph 50 of Article VIII that the drafts of such agreements would be prepared by the Preparatory Commission for the OPCW and that the Conference of the States Parties would consider and approve them at its First Session. However, during the preparatory phase (1993-1997), consensus could not be reached on the text of such agreements. Thus, in contrast with the practice of the United Nations, the UN specialised agencies and the International Atomic Energy Agency, there is no general convention on privileges and immunities of the OPCW to which States Parties are expected to adhere. Instead, with a view to ensuring the consistency of the provisions in the separate agreements, and on the basis of the draft tabled during the preparatory phase, the Secretariat has prepared a basic text which can be used as a basis for negotiating a privileges and immunities agreement with each State Party individually.

The basic text accords functional privileges and immunities to the OPCW and, in varying degrees, to the Director-General, staff, experts, and the representatives of States Parties participating in OPCW meetings. These functional privileges and immunities are consistent with those granted to other international organisations, staff and delegates. In addition, and consistent with the practice of other international organisations, the Director-General and his or her spouse, or a senior official of the Secretariat acting on behalf of the Director-General, are accorded diplomatic privileges and immunities.

States Parties which have not yet concluded a privileges and immunities agreement are nevertheless bound by paragraphs 48, 49 and 51 of Article VIII, which provide in principle for functional privileges and immunities for the OPCW, delegations, the Director-General and staff, as well as the full range of privileges and immunities specified in VA Part II(B) for members of inspection teams. In the absence of a privileges and immunities agreement or of specific legislation, and depending upon its legal system, a State Party’s organs or courts may be called upon to interpret those provisions and to decide which privileges and immunities are actually necessary for the OPCW function in question. The Secretariat expects that VA Part II(B) will be fully respected during all verification activities. For all other OPCW activities, the Secretariat takes the view that the privileges and immunities specified in the basic text are functionally necessary and in line with those which are customarily accorded by States in this context. That customary practice, read together with the obligation of each State Party, under paragraph 50 of Article VIII, to conclude such an agreement with the OPCW, in effect means that such privileges and immunities can be asserted in an interim period, pending the conclusion of the actual agreement.

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B. In the Host Country (the Netherlands)

Article VIII, paragraph 50, also refers to “an agreement between the Organization and the State in which the headquarters of the Organization is seated”. In the last phase of negotiations of the Convention, the Netherlands succeeded with its bid to host the OPCW. The signatory states’ Paris Resolution included as its annex 2, “Privileges, immunities and practical arrangements to be laid down in the Headquarters Agreement”. On the basis of the criteria set forth in that annex, the Preparatory Commission negotiated a draft Headquarters Agreement with the Netherlands. The text of the agreement includes the standard provisions contained in the headquarters agreements of other international organisations around the world, as well as a small number of specific provisions additionally agreed to. After the draft text was approved by the Conference of the States Parties at its First Session in May 1997, it was signed by the OPCW and the Government of the Netherlands, and entered into force shortly thereafter.

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C. During the conduct of inspections

Part II(B) of the Verification Annex, together with Article VIII, paragraph 51, sets forth the privileges and immunities to be accorded to the Director-General and the staff of the Secretariat, including inspectors and inspection assistants and observers, during the conduct of verification activities. In contrast with the Convention’s lack of specificity on the functional privileges and immunities to be accorded to other categories of individuals, the drafters of the Convention foresaw that members of inspection teams, regardless of rank, would need more far-reaching privileges and immunities in order to be able to carry out verification activities, some of which may be intrusive, with full independence and without interference from the inspected State Party or a third party.

Therefore, the full range of diplomatic privileges and immunities are accorded to members of inspection teams while on mission. VA Part II(B) provides that the members of the inspection team may not be arrested or detained; their quarters are inviolable; their papers and correspondence, including records, are inviolable; their samples and inspection equipment are inviolable; and they enjoy, not merely immunity from criminal jurisdiction and most civil and administrative jurisdiction, but also inviolability during transit. The provisions of VA Part II(B) have been reprinted on the United Nations laissez-passer which, by special arrangement with the United Nations, inspection team members carry with them on mission.

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D. During the conduct of an investigation of alleged use

The Convention foresees two basic types of investigation of alleged use: those conducted on the territory of a State Party, and those conducted on territory belonging to, or controlled by, a State not party to the Convention. The privileges and immunities of OPCW inspectors in relation to the first type of investigation are set out below, while those related to the second type of investigation are discussed in the next section.

One distinguishing feature that is likely to characterise an investigation of alleged use is that such an incident could occur as a single act of terrorism or in the context of armed conflict. The planning for such investigations takes into account the fact that an allegation of the use of chemical weapons would in most cases be an indicator of political instability or of a fluid and dangerous environment. It is thus foreseen that the legal framework for an alleged use investigation should include additional protection for the inspection team, which will probably take the form of a special agreement or arrangement concluded between the OPCW and the requesting State. The legal basis for such a special arrangement is VA Part XI, paragraph 10, which provides that “immediately upon receipt of a request for an investigation of alleged use of chemical weapons the Director-General shall, through contacts with the relevant States Parties, request and confirm arrangements for the safe reception of the team” (emphasis added). It is obviously essential for these arrangements to be concluded before an inspection team is sent into a potentially volatile situation.

The OPCW would expect such an arrangement to include provisions to the effect that: a Host State Party in a situation of armed conflict would ensure the immediate release of the OPCW inspection team if it were to be captured or detained, and would also ensure that the privileges and immunities stipulated in VA Part II(B) would be respected. Moreover, since VA Part XI foresees that the investigation of alleged use may have to be extended into the territory of a neighbouring State Party, more than one Host State Party may be involved. In that event, further steps will have to be undertaken to ensure respect for the privileges and immunities of the OPCW team and its protection.

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E. OPCW resources placed at the disposal of the United Nations Secretary-General

For the second type of alleged use investigation, i.e. in the territory of a State not party to the Convention, the matter may become even more complex. The basis for this second type of alleged use investigation is VA Part XI, paragraph 27, which provides:

In the case of alleged use of chemical weapons involving a State not Party to this Convention or in territory not controlled by a State Party, the Organization shall closely cooperate with the Secretary-General of the United Nations. If so requested, the Organization shall put its resources at the disposal of the Secretary-General of the United Nations.

As indicated under section C above, the privileges and immunities of OPCW inspection teams are stipulated in the Convention and reproduced in the UN laissez-passer which they carry. If an OPCW inspection team is put at the disposal of the Secretary-General of the United Nations for an inspection under VA Part XI, paragraph 27, the United Nations will be responsible for ensuring that the privileges and immunities of the OPCW inspectors on loan are met.

So far, OPCW inspectors have been loaned to the United Nations Secretary-General on just one occasion – a special mission in July 1999 to close a laboratory and destroy chemical samples on the territory of Iraq, which is not a party to the Chemical Weapons Convention. For that ad hoc mission, a special arrangement was reached on the status, privileges and immunities of the OPCW inspectors.

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