Agreement between United Nations and OPCW
Article VIII paragraph 34(a), of the Convention mandates the Executive Council to conclude agreements or arrangements with States and international organisations on behalf of the OPCW, subject to prior approval by the Conference of the States Parties.
The first such agreement, the Relationship Agreement between the United Nations and the OPCW, was concluded with the United Nations in 2000 and entered into force in 2001.
The Relationship Agreement was approved by the OPCW Conference of the States Parties in decision C-VI/DEC.5 dated 17 May 2001 and by the United Nations General Assembly in resolution A/RES/55/283 dated 24 September 2001.
Read the text of the agreement (Annex to EC-MXI/DEC.1, dated 1 September 2000).
Agreement between the Kingdom of the Netherlands and OPCW
In accordance with Article VIII, paragraph 50 of the Convention, the legal capacity, privileges and immunities referred to in Article VIII are to be defined in an agreement between the OPCW and the Host Country.
Read the text of the Headquarters agreement (C-I/DEC.59, dated 14 May 1997).
Facility agreements between OPCW and State Parties
During an initial inspection at a facility or plant site, one of the tasks of an OPCW inspection team is to begin work on a facility agreement, which will govern all future inspections at that facility or plant site. Such agreements are required for all chemical weapons-related facilities, facilities producing Schedule 1 chemicals, and Schedule 2 plant sites. With respect to the last category, however, the Secretariat and the inspected State Party can agree that an agreement is not necessary for a particular site. For plant sites producing Schedule 3 chemicals or unscheduled discrete organic chemicals, a facility agreement is not normally needed, although the inspected State Party may request one. Facility agreements are negotiated between the Secretariat and the inspected State Party on the basis of models approved by the Conference of the States Parties (see below), and are then submitted to the Executive Council for its approval.
Privileges and Immunities
Agreements between the OPCW and States Parties on the 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.
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.
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.
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.
Status of OPCW Privileges and Immunities Agreements
|State Party||Date of approval of the Agreement by the Executive Council or the Conference of the States Parties||Date of signature of the Agreement||Date of entry into force of the Agreement|
|Albania||EC-64/DEC.3 (4 May 2011)||20 October 2011||16 April 2012|
|Argentina||C-7/DEC.22 (11 October 2002) and EC-31/DEC.4 (10 December 2002)||12 December 2002||30 July 2009|
|Austria||C-VI/DEC.12 (17 May 2001) and EC-XXV/DEC.1 (27 June 2001)||10 July 2001||1 September 2002|
|Bahrain||EC-84/DEC.5 (9 March 2017)||12 June 2017, 29 June 2017||8 June 2018|
|Belarus||C-VI/DEC.13 (17 May 2001) and EC-XXV/DEC.2 (27 June 2001)||17 July 2001||16 September 2002|
|Bosnia and Herzegovina||C-8/DEC.8 (23 October 2003) and EC-35/DEC.4 (3 December 2003)||3 May 2004||28 September 2005|
|Bulgaria||EC-63/DEC.4* (2 May 2012)||2 October 2012||25 November 2013|
|Burkina Faso||EC-47/DEC.11 (8 November 2006)||7 February 2007||7 February 2007|
|Burundi||C-8/DEC.9 (23 October 2003) and EC-35/DEC.2 (3 December 2003)||20 April 2009||30 April 2015|
|Cambodia||EC-84/DEC.6 (9 March 2017)||12 October 2017||[not yet entered into force]|
|Chile||EC-48/DEC.4 (14 March 2007)||30 October 2007||11 July 2013|
|Colombia||EC-44/DEC.7 (14 March 2006)||12 September 2006||7 September 2015|
|Comoros||EC-62/DEC.7 (6 October 2010)||3 December 2010||[not yet entered into force]|
|Cuba||EC-40/DEC.12 (17 March 2005)||30 November 2005||[not yet entered into force]|
|Cyprus||C-8/DEC.10 (23 October 2003) and EC-35/DEC.3 (3 December 2003)||22 March 2004||6 September 2005|
|Czech Republic||EC-64/DEC.2 (4 May 2011)||15 June 2011||1 May 2012|
|Denmark||EC-X/DEC/CRP.2 (9 June 1998) C-III/DEC.4 (17 November 1998) and EC-XI/DEC.6 (4 September 1998)||19 July 2000||15 April 2010|
|Dominica||EC-54/DEC.8 (15 October 2008)||12 July 2012||[not yet entered into force]|
|Dominican Republic||EC-63/DEC.5 (16 February 2011)||15 September 2011||27 August 2014|
|Ecuador||EC-53/DEC.15 (25 June 2008)||17 July 2008||[not yet entered into force]|
|El Salvador||EC-52/DEC.1 (4 March 2008)||3 July 2008||4 March 2009|
|Estonia||EC-65/DEC.3 (13 July 2011)||26 October 2011||10 July 2012|
|Finland||C-7/DEC.21 (11 October 2002) and EC-31/DEC.3 (10 December 2002)||10 February 2003||29 May 2004|
|Gambia||EC-71/DEC.8 (20 February 2013)||15 April 2013||[not yet entered into force]|
|Georgia||EC-77/DEC.6 (9 October 2014)||5 June 2015, 2 July 2015||[not yet entered into force]|
|Ghana||EC-X/DEC/CRP.2 (9 June 1998) C-III/DEC.4 (17 November 1998) and EC-XI/DEC.6 (4 September 1998)||19 Aug 1999||[not yet entered into force]|
|Greece||EC-XVI/DEC.2 (24 Sept 1999)||7 December 1999||28 February 2006|
|Guinea||EC-61/DEC.6 (1 July 2010)||1 December 2010||[not yet entered into force]|
|Hungary||EC-79/DEC.5 (9 July 2015)||3 December 2015||25 May 2016|
|Kenya||C-V/DEC.4 (17 May 2000) and EC-XIX/DEC.3 (5 April 2000)||28 March 2001||19 February 2015|
|Kuwait||EC-41/DEC.3 (29 June 2005)||9 March 2006||[not yet entered into force]|
|Laos||EC-67/DEC.5 (15 February 2012)||30 March 2012||[not yet entered into force]|
|Latvia||C-V/DEC.5 (17 May 2000) and EC-XIX/DEC.2 (5 April 2000)||25 September 2000||6 March 2001|
|Madagascar||EC-44/DEC.6 (14 March 2006)||2 December 2010||[not yet entered into force]|
|Mali||EC-66/DEC.8 (5 October 2011)||2 December 2011||2 December 2011|
|Malta||EC-37/DEC.6 (29 June 2004)||23 November 2004||5 April 2005|
|Mauritius||EC-37/DEC.5 (29 June 2004)||3 July 2008||1 August 2012|
|Mozambique||EC-68/DEC.2 (2 May, 2012)||12 July 2012||[not yet entered into force]|
|Panama||C-VI/DEC.7 (17 May 2001) and EC-XXI/DEC.2 (4 October 2000)||13 February 2002||26 May 2003|
|Paraguay||EC-67/DEC.4 (15 February 2012)||28 March 2012||14 August 2018|
|Philippines||C-VI/DEC.14 (17 May 2001) and EC-XXV/DEC.3 (27 June 2001)||12 November 2001||8 August 2003|
|Poland||EC-41/DEC.4 (29 June 2005)||5 August 2008||6 November 2009|
|Portugal||C-VI/DEC.6 (17 May 2001) and EC-XXI/DEC.1 (4 October 2000)||5 July 2001||2 July 2010|
|Republic of Korea||EC-XV/DEC.2 (28 April 1999) and C-IV/DEC.9 (29 June 1999)||10 April 2000||1 April 2004|
|Romania||EC-85/DEC.8 (13 July 2017)||6 September 2017||2 May 2018|
|Serbia||EC-52/DEC.2 (4 March 2008)||7 March 2008||15 July 2009|
|Slovakia||C-8/DEC.11 (23 October 2003) and EC-35/DEC.5 (3 December 2003)||12 February 2004||13 October 2004|
|South Africa||EC-62/DEC.6 (6 October 2010)||11 January 2011, 25 February 2011||5 November 2013|
|Spain||C-7/DEC.23* (11 October 2002) and EC-31/DEC.5 (10 December 2002)||16 September 2003||3 July 2007|
|Sudan||EC-72/DEC.3 (7 May 2013)||8 May 2013||[not yet entered into force]|
|Switzerland||EC-41/DEC.5 (29 June 2005)||20 July 2005||22 November 2005|
|Thailand||EC-67/DEC.3 (15 February 2012)||2 March 2012||[not yet entered into force]|
|United Kingdom||C-V/DEC.6* (17 May 2000) and EC-XIX/DEC.1 (5 April 2000)||26 October 2000||28 February 2002|
|United Arab Emirates||EC-56/DEC.2* (22 April 2009)||24 April 2009||20 January 2010|
|Uruguay||EC-47/DEC.12 (8 November 2006)||20 February 2007||11 May 2012|
|Viet Nam||EC-66/DEC.9 (5 October 2011)||[not signed yet]||[not yet entered into force]|