Article IX consists of 25 paragraphs. This Article sets forth procedures for clarifying and investigating concerns about possible non–compliance with the Convention. Paragraphs 1 through 7 contain procedures for a State Party to request and receive clarification from another State Party of a situation with regard to compliance with the Convention. Paragraphs 8 through 25 contain the basic rights and obligations pertaining to special inspections that can be requested by a State Party that has concerns about compliance with the Convention by another State Party ("challenge inspections"). (The detailed procedures for conducting challenge inspections are contained in Part X of the Verification Annex.)
Paragraph 1 of Article IX creates a broad general obligation for States Parties to consult and cooperate on any matter related to the object and purpose, or the implementation, of the Convention. Specifically, this paragraph requires States Parties to consult and cooperate, directly among themselves, or through the Organization or other appropriate international procedures, including procedures within the framework of the UN and in accordance with its Charter, on any matter which may be raised relating to the object and purpose, or the implementation of the provisions, of the Convention.
Paragraph 2 of Article IX gives a State Party the right to request clarification of a situation involving compliance with the Convention directly from another State Party and requires the other State Party to provide such clarification. Specifically, this paragraph states that without prejudice to the right of any State Party to request a challenge inspection, States Parties should, whenever possible, first make every effort to clarify and resolve, through exchange of information and consultations among themselves, any matter which may cause doubt about compliance with the Convention, or which gives rise to concerns about a related matter which may be considered ambiguous. This paragraph further states that a State Party that receives a request from another State Party for clarification of any matter about which the requesting State Party has a doubt or concern shall provide the requesting State Party as soon as possible, but in any case within 10 days after the request, with information sufficient to answer the doubt or concern raised along with an explanation of how the information provided resolves the matter. Finally, this paragraph states that nothing in the Convention shall affect the right of any two or more States Parties to arrange by mutual consent for inspections or any other procedures among themselves to clarify and resolve any matter that may cause doubt about compliance or that gives rise to a concern about a related matter that may be considered ambiguous, and that such arrangements shall not affect the rights and obligations of any State Party under other provisions of the Convention.
Note that, while encouraging consultations as a first step, a State Party is not required to first exhaust such attempts at resolving concerns bilaterally before requesting a challenge inspection. Note also that the paragraph makes clear that provisions for resolving concerns about compliance in bilateral inspection regimes, such as the U.S./Russia Bilateral Destruction Agreement, are neither modified by nor modify the provisions of this Article.
Paragraph 3 of Article IX gives each State Party the right to request assistance from the Executive Council in obtaining clarification of a situation involving compliance with the Convention. Specifically, this paragraph gives a State Party the right to request that Executive Council assist in clarifying any situation that may be considered ambiguous or that gives rise to a concern about the possible non–compliance of another State Party with the Convention. This paragraph further requires that the Executive Council provide appropriate information in its possession relevant to such a concern. Note that the provision of such information must be in conformity with the provisions for release of information contained in the Confidentiality Annex.
Paragraph 4 of Article IX gives each State Party the further right to request that Executive Council obtain clarification from another State Party on any situation that may be considered ambiguous or that gives rise to a concern about its possible non–compliance with the Convention. The procedures for this are set forth in six subparagraphs.
Subparagraph 4(a) requires the Executive Council to forward the request for clarification to the State Party concerned through the Director–General within 24 hours after its receipt.
Subparagraph 4(b) requires the requested State Party to provide the clarification to the Executive Council as soon as possible, but in any case within 10 days after the receipt of the request.
Subparagraph 4(c) requires the Executive Council to take note of the clarification and forward it to the requesting State Party within 24 hours after its receipt.
Subparagraph 4(d) gives the requesting State Party, if it deems the clarification to be inadequate, the right to request that the Executive Council obtain further clarification from the requested State Party.
Subparagraph 4(e) states that for the purpose of obtaining further clarification when the clarification provided has been deemed to be inadequate, the Executive Council may call on the Director–General to establish a group of experts from the Technical Secretariat, or if appropriate staff are not available in the Technical Secretariat, from elsewhere, to examine all available information and data relevant to the situation causing the concern. This subparagraph further states that the group of experts shall submit a factual, i.e. non–judgmental, report to the Executive Council on its findings. There is no set time–frame required for the submission of this report. However, to be effective, the report would have to be submitted within the 60–day time period for resolving concerns before the Conference is consulted, as specified in paragraph 7 of this Article.
Subparagraph 4(f) gives the requesting State Party, if it considers the clarifications obtained earlier to be unsatisfactory, the right to request a special session of the Executive Council in which States Parties involved that are not members of the Executive Council shall be entitled to take part. This subparagraph further states that in such a special session, the Executive Council shall consider the matter and may recommend any measure it deems appropriate to resolve the situation.
Paragraph 5 of Article IX gives a State Party that has received a request for clarification a corresponding right to request Executive Council assistance in clarifying the situation. Specifically, this paragraph provides a State Party with the right to request the Executive Council to clarify any situation which has been considered ambiguous or has given rise to a concern about its possible non–compliance with the Convention. This paragraph further states that the Executive Council shall respond by providing such assistance as appropriate. This means that both the State Party that has concerns about compliance by another State Party and the State Party about which there are concerns have the right to seek Executive Council assistance in clarifying the situation.
Paragraph 6 of Article IX requires the Executive Council to inform the States Parties about any request for clarification made pursuant to this Article.
Paragraph 7 of Article IX reiterates the right of a State Party, if supported by one–third of the members of the Conference, to convene a special session of the Conference when its concerns have not been resolved or it believes the concerns warrant urgent consideration, and requires the Conference to consider the matter. Specifically, this paragraph states that if the doubt or concern of a State Party about a possible non–compliance has not been resolved within 60 days after the submission of the request for clarification to the Executive Council, or it believes its doubts warrant urgent consideration, notwithstanding its right to request a challenge inspection, it may request a special session of the Conference in accordance with paragraph 12(c) of Article VIII. (Paragraph 12(c) of Article VIII states that special sessions of the Conference shall be convened when requested by any member and supported by one–third of the members.) This paragraph further states that at such a special session, the Conference shall consider the matter and may recommend any measure it deems appropriate to resolve the situation.
Paragraphs 8 through 25 set forth provisions for States Parties to request challenge inspections when they have concerns about compliance by other States Parties.
Paragraph 8 of Article IX gives each State Party the general right to have the Technical Secretariat conduct a challenge inspection anywhere in another State Party. Specifically, this paragraph states that each State Party has the right to request an on–site challenge inspection of any facility or location in the territory or in any other place under the jurisdiction or control of any other State Party for the sole purpose of clarifying and resolving any questions concerning possible non–compliance with the provisions of the Convention, and to have this inspection conducted anywhere without delay by an inspection team designated by the Director–General and in accordance with the Verification Annex. Note that this inspection is automatic unless, as provided for in paragraph 17 of Article IX, the Executive Council votes against it.
Paragraph 9 of Article IX requires a challenge inspection request to be related only to a concern regarding a possible violation of the Convention. Specifically, this paragraph states that each State Party is under the obligation to keep its inspection request within the scope of the Convention and to provide in the inspection request all appropriate information on the basis of which a concern has arisen regarding possible non–compliance with the Convention as specified in the Verification Annex. (Paragraph 4(d) of Part X of the Verification Annex reiterates this requirement in the detailed provisions implementing Article IX.)
The term "all appropriate information" is understood to mean that a State Party does not need to provide all of the information that forms the basis for its concern. Thus, a State Party is not required to provide sensitive intelligence to meet the requirements regarding the contents of an inspection request.
Paragraph 9 further states that each State Party shall refrain from unfounded inspection requests, care being taken to avoid abuse and that the challenge inspection shall be carried out for the sole purpose of determining facts relating to the possible non–compliance.
Paragraph 10 of Article IX creates a corresponding, unconditional obligation on each State Party to permit requested challenge inspections. Specifically, this paragraph states that for the purpose of verifying compliance with the provisions of the Convention, each State Party shall permit the Technical Secretariat to conduct the on–site challenge inspection pursuant to paragraph 8. Note that, unlike other treaties such as the Conventional Forces in Europe Treaty, a State Party has no right of refusal with regard to acceptance of challenge inspections.
Paragraph 11 of Article IX sets forth, in three subparagraphs, the basic obligations and rights of an inspected State Party with regard to challenge inspections, which are to be exercised pursuant to a request for a challenge inspection of a facility or location and in accordance with the procedures provided for in the Verification Annex. The purpose of this paragraph is to summarize the basic balance between the obligation of an inspected State Party to allow and assist challenge inspections and to make every reasonable effort to show that it is in compliance with the Convention, with the right of the inspected State Party to take measures to protect sensitive information and installations not related to chemical weapons.
Subparagraph 11(a) gives the inspected State Party the right and the obligation to make every reasonable effort to demonstrate its compliance with the Convention and, to this end, to enable the inspection team to fulfill its mandate. Note that the right to demonstrate compliance was made explicit to alleviate the concerns of some developing countries regarding abuse of challenge inspections. (Under paragraph 18 of this Article, the inspection mandate is the inspection request filed by the requesting State Party put into operational terms by the Technical Secretariat.)
Subparagraph 11(b) requires the inspected State Party to provide access within the requested site for the sole purpose of establishing facts relevant to the concern regarding possible non–compliance. Note that the nature and extent of access is governed by Section C of Part X of the Verification Annex.
Subparagraph 11(c) gives the inspected State Party the right to take measures to protect sensitive installations, and to prevent disclosure of confidential information and data, not related to the Convention.
Paragraph 12 of Article IX sets forth, in three subparagraphs, the right of a requesting State Party to request that an observer accompany the inspection team on a challenge inspection and the expectation that the inspected State Party will grant such a request.
Subparagraph 12(a) states that the requesting State Party may, subject to the agreement of the inspected State Party, send a representative who may be a national either of the requesting State Party or of a third State Party, to observe the conduct of the challenge inspection.
Subparagraph 12(b) requires the inspected State Party to grant access to the observer, if allowed, in accordance with the Verification Annex. (Paragraphs 53 through 56 of Part X of the Verification Annex provide for coordination of the arrival of the observer and the inspection team, communications between the observer and the embassy of the requesting State Party, recommendations by the observer to the inspection team, and provision of amenities for the observer. Pursuant to paragraph 55 of Part X, the observer has the right to arrive at the perimeter of the inspection site, but access within the perimeter is determined by the inspected State Party.)
Subparagraph 12(c) requires the inspected State Party to, as a rule, accept the proposed observer, but states that if the inspected State Party exercises a refusal, that fact shall be recorded in the final report.
Paragraph 13 of Article IX contains the first of the provisions setting forth the process for initiating, conducting and concluding a challenge inspection. Specifically, this paragraph requires the requesting State Party to present an inspection request for an on–site challenge inspection to the Executive Council and at the same time to the Director–General for immediate processing.
Paragraph 14 of Article IX concerns the response of the Director–General to a request for a challenge inspection. Specifically, this paragraph requires the Director–General to immediately ascertain that the inspection request meets the requirements specified in paragraph 4 of Part X of the Verification Annex, and, if necessary, assist the requesting State Party in filing the inspection request accordingly. (Paragraph 4 of Part X requires an challenge inspection request to contain the name of the State Party to be inspected and, if applicable, the Host State; the point of entry to be used; the size and type of the inspection site; the concern regarding possible non–compliance with the Convention, including the relevant provisions of the Convention, the nature and circumstances of the possible non–compliance, and all appropriate information on the basis of which the concern has arisen; and the name of the observer.)
Note that the inspection request does not have to contain the location of the inspection site. Pursuant to paragraph 6 of Part X of the Verification Annex, the requesting State Party need only provide this information in time for the Director–General to provide the information to the inspected State Party no less than 12 hours before the planned arrival of the inspection team at the point of entry. Finally, Paragraph 14 also states that when the inspection request fulfills the requirements, preparations for the challenge inspection shall begin.
Paragraph 15 of Article IX concerns notification of the inspected State Party of a request for a challenge inspection. Specifically, this paragraph requires the Director–General to transmit the inspection request to the inspected State Party not less than 12 hours before the planned arrival of the inspection team at the point of entry. Note that it is only at this point in the process, which may be days after the inspection request is received, that the inspected State Party is first notified of an impending challenge inspection. (However, if the inspected State Party is one of the forty–one members of the Executive Council, it will know of the challenge inspection request immediately upon its submission.)
Paragraph 16 of Article IX concerns the involvement of the Executive Council in the challenge inspection process. Specifically, this paragraph states that after having received the inspection request, the Executive Council shall take cognizance of the Director–General's actions on the request and shall keep the case under its consideration throughout the inspection procedure. This paragraph further states that the Executive Council's deliberations, however, shall not delay the inspection process. The purpose of this paragraph is to provide Executive Council oversight of the inspection while, except as provided for in paragraph 17, retaining the automaticity of the challenge inspection.
Paragraph 17 of Article IX gives the Executive Council the power, in limited circumstances, to cancel a challenge inspection. Specifically, this paragraph states that the Executive Council may, not later than 12 hours after having received the inspection request, decide by a three–quarters majority of all its members against carrying out the challenge inspection, if it considers the inspection request to be frivolous, abusive or clearly beyond the scope of the Convention as described in paragraph 8. (Paragraph 8 of Article IX limits challenge inspections to any facility or location in the territory or in any other place under the jurisdiction or control of a State Party and requires such inspections to be for the sole purpose of clarifying and resolving any questions concerning possible non–compliance with the provisions of the Convention.)
Paragraph 17 further states that neither the requesting nor the inspected State Party shall participate in such a decision. Note that this does not preclude these States Parties from attending the meeting if they are members of the Executive Council. Finally, this paragraph states that if the Executive Council decides against the challenge inspection, preparations shall be stopped, no further action on the inspection request shall be taken, and the States Parties concerned shall be informed accordingly.
Paragraph 17 is a compromise between, on the one hand, certain developing countries that wanted the Executive Council to be able to decide whether challenge inspections should take place because of their concerns of possible abuse and, on the other hand, other negotiating states, including the U.S., that desired automaticity in conducting challenge inspections. The very short time–frame of 12 hours for consideration, coupled with the requirement for a three–quarters majority vote, could make it difficult to stop an inspection.
Paragraph 18 of Article IX concerns the creation of a mandate for the challenge inspection based on the inspection request. Specifically, this paragraph requires the Director–General to issue an inspection mandate for the conduct of the challenge inspection. The inspection mandate is the inspection request referred to in paragraphs 8 and 9 of this Article put into operational terms (i.e., instructions issued to the inspection team for the conduct of a particular inspection), which shall conform with the inspection request. (Paragraphs 8 and 9 of this Article establish the rights and limitations regarding requests for challenge inspections.)
Paragraph 19 of Article IX states that challenge inspections shall be conducted in accordance with Part X or, in the case of alleged use, in accordance with Part XI of the Verification Annex. (Part X provides the general rules for challenge inspections while Part XI provides special rules for investigations of alleged use of chemical weapons.) Paragraph 19 further states that the inspection team shall be guided by the principle of conducting the challenge inspection in the least intrusive manner possible, consistent with the effective and timely accomplishment of its mission. (This provision is repeated in paragraph 45 of Part X of the Verification Annex.)
Paragraph 20 of Article IX sets forth the basic obligations of an inspected State Party. Specifically, this paragraph requires the inspected State Party to assist the inspection team throughout the challenge inspection and facilitate its task. This paragraph also states that if the inspected State Party proposes, pursuant to Section C of Part X of the Verification Annex, arrangements to demonstrate compliance with this Convention, alternative to full and comprehensive access, it shall make every reasonable effort, through consultations with the inspection team, to reach agreement on the modalities for establishing the facts with the aim of demonstrating its compliance.
(Section C of Part X of the Verification Annex contains the general rules and the rules of managed access for conducting challenge inspections, including a provision allowing the inspected State Party to take into account its constitutional obligations with regard to proprietary rights or searches and seizures (paragraph 41 of Part X).)
This means that, in most cases, an inspected State Party is expected to take steps to demonstrate its compliance by providing full and comprehensive access to an inspection site. However, if a State Party chooses to exercise its rights to take measures to protect sensitive installations and information, including denial of access to parts of the inspection site, it then must consult with the inspection team and make every reasonable effort to reach agreement on the best alternative method for demonstrating that it is in compliance with the Convention.
Paragraph 21 of Article IX sets forth the requirements concerning the contents and transmittal to the Executive Council and States Parties of the final report of the inspection team, and transmittal to the Executive Council and States Parties of the assessments of the involved States Parties and the views of other States Parties. Specifically, this paragraph states that the final report shall contain the factual findings as well as an assessment by the inspection team of the degree and nature of access and cooperation granted for the satisfactory implementation of the challenge inspection.
This paragraph further states that the Director–General shall promptly transmit the final report of the inspection team to the requesting State Party, to the inspected State Party, to the Executive Council and to all other States Parties. Finally, this paragraph requires the Director–General to further transmit promptly to the Executive Council the assessments of the requesting and of the inspected States Parties, as well as the views of other States Parties which may be conveyed to the Director–General for that purpose, and then to provide them to all States Parties.
Paragraph 22 of Article IX provides for Executive Council review of the final report and requires it to address any concerns related to non–compliance, the scope of the request, or abuse of the right to request a challenge inspection. Specifically, this paragraph requires the Executive Council to, in accordance with its powers and functions, review the final report of the inspection team as soon as it is presented, and address any concerns as to whether any non–compliance has occurred, whether the request had been within the scope of the Convention, and whether the right to request a challenge inspection had been abused.
Note that the Executive Council is not given any special powers in regard to determining compliance or non–compliance. Instead, it must act in accordance with "its powers and functions," i.e. paragraphs 30 through 36 of Article VIII. In particular, paragraph 36 gives the Executive Council the power to request States Parties to take measures to redress situations within a specified time, and if they do not comply, to, inter alia, make recommendations to the Conference regarding these measures and measures to ensure compliance.
Note also that the phrase "address any concerns" is understood to mean the Executive Council may "address" a State Party's concerns. However, the phrase does not provide for the Executive Council to decide whether non–compliance with the Convention has occurred. The language in paragraph 22 is a compromise between certain developing countries that wanted an international body to decide whether a violation had occurred, and other negotiating states, including the U.S., that wanted decisions on violations to be left up to each State Party itself to determine.
Paragraph 23 of Article IX requires the Executive Council to take certain specific steps if it concludes that further action is necessary to respond to the results of a challenge inspection. Specifically, this paragraph states that if the Executive Council reaches the conclusion, in keeping with its powers and functions, that further action may be necessary with regard to paragraph 22, it shall take the appropriate measures to redress the situation and to ensure compliance with the Convention, including specific recommendations to the Conference. This means that if the Executive Council concludes that it must undertake further action, one of the steps it must take is the otherwise optional action permitted under paragraph 36(c) of Article VIII, i.e. recommendations to the Conference concerning measures to redress the situation and to ensure compliance.
Finally, paragraph 23 states that in the specific case of abuse of the right to request a challenge inspection, the Executive Council shall examine whether the requesting State Party should bear any of the financial implications of the challenge inspection.
Paragraph 24 of Article IX gives the requesting State Party and the inspected State Party the right to participate in the review process and requires the Executive Council to inform the States Parties and the next session of the Conference of the outcome of the process.
Paragraph 25 of Article IX states that if the Executive Council has made specific recommendations to the Conference, the Conference shall consider action in accordance with Article XII. (Article XII specifies measures that may be taken by the Conference to redress situations and to ensure compliance with the Convention.) Thus, this paragraph ensures a linkage between actions taken by the Executive Council in response to the results of a challenge inspection and the general provisions for the Conference to ensure compliance with the Convention.