Privileges and Immunities of the OPCW

The legal basis for privileges and immunities of the OPCW and certain categories of officials (delegates, representatives, alternates, advisers, the Director-General, staff, and experts) is found in Article VIII, section E of the Chemical Weapons Convention (the “Convention”). The rationale for according 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. The Convention envisages three types of privileges and immunities: (1) the OPCW itself is granted “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’ privileges and immunities are “those set forth in Part II, Section B, of the Verification Annex” of Convention.

An examination of the Convention suggests at least three distinct scenarios in which the privileges and immunities of the OPCW and specific categories of its officials could be relevant. 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 individuals engaged in verification activities pursuant to the Verification Annex of the Convention, the specific privileges and immunities accorded to the OPCW, its officials, and delegates are not enumerated in the Convention. The Convention provides only that such privileges and immunities 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, for example, there is no general convention on privileges and immunities of the OPCW. 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 in the OPCW’s six official languages which can be used as a basis for negotiating a privileges and immunities agreement bilaterally with each State Party.

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. This approach to privileges and immunities is 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 that have not yet concluded a privileges and immunities agreement are nevertheless bound by paragraphs 48, 49, and 51 of Article VIII of the Convention, 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 Part II(B) of the Verification Annex 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 necessary for the OPCW function in question. Consistent with Part II(B) of the Verification Annex and as discussed in greater detail below, States Parties are obliged to accord the specified privileges and immunities during all verification activities and while in transit in association with such activities. For 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 that are customarily accorded by States to international organisations in furtherance of their mandates.

 

 

To top

B. In the Host Country (the Netherlands)

Article VIII, paragraph 50 of the Convention refers to “an agreement between the Organization and the State in which the headquarters of the Organization is seated”. The Netherlands is the host country for the OPCW’s Headquarters. The Convention’s 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 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 that reflect the OPCW’s operations and mandate. 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 Kingdom of the Netherlands and entered into force shortly thereafter.

To top

C. During the conduct of inspections

Part II(B) of the Verification Annex, together with Article VIII, paragraph 51 of the Convention, sets forth the privileges and immunities to be accorded to the Director-General and the staff of the Secretariat -- including inspectors, 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 comprehensive privileges and immunities in order 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. Part II(B) of the Verification Annex 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 Part II(B) of the Verification Annex have been reprinted in the United Nations laissez-passer which, by special arrangement with the United Nations, inspection team members use as their travel document when on mission.

To top