Part II of the Verification Annex contains general rules of verification, which apply to all inspections unless there are different rules for a specific type of inspection. Part II contains provisions on the designation of inspectors and inspection assistants, privileges and immunities to be accorded members of the inspection team and observers, pre–inspection activities, conduct of inspections, and the departure and reports of the inspection team. (Pursuant to paragraph 66 of this Part, these general rules apply to all inspections, except where the specific rules for specific types of inspections e.g. challenge inspections, differ from these general rules, in which case the specific rules take precedence.)
Section A (paragraphs 1 through 9) of Part II of the Verification Annex provides for the designation by the Technical Secretariat of inspectors and inspection assistants and for their acceptance or rejection by a State Party.
Paragraph 1 of Part II requires the Technical Secretariat to provide States Parties with background information on its inspectors and inspection assistants. Specifically, this paragraph states that, within 30 days after entry into force of the Convention, the Technical Secretariat shall communicate, in writing, to all States Parties the names, nationalities and ranks of the inspectors and inspection assistants proposed for designation, as well as a description of their qualifications and professional experiences.
Paragraph 2 of Part II gives each State Party, at the time of the initial designation of inspectors and inspection assistants, the right to bar specific inspectors or inspection assistants from participating in any inspections of the State Party. Specifically, this paragraph requires each State Party to immediately acknowledge receipt of the list of inspectors and inspection assistants proposed for designation and to inform the Technical Secretariat in writing of its acceptance of each inspector and inspection assistant, within 30 days after acknowledgement of receipt of the list. This paragraph also states that any inspector and inspection assistant included in this list shall be regarded as designated unless a State Party, not later than 30 days after acknowledgement of receipt of the list, declares its non–acceptance in writing. The State Party may also, but is not required to, include the reason for the objection. This paragraph further states that in the case of non–acceptance, the proposed inspector or inspection assistant shall not undertake or participate in verification activities on the territory or in any other place under the jurisdiction or control of the State Party which has declared its non–acceptance. Finally, this paragraph requires the Technical Secretariat to, as necessary, submit further proposals in addition to the original list.
Note that rejection of an inspector or inspection assistant by a State Party does not prohibit the inspector or inspection assistant from participating in inspections of other States Parties that have accepted them.
Paragraph 3 of Part II states that verification activities under the Convention shall only be performed by designated inspectors and inspection assistants.
Paragraph 4 of Part II gives a State Party the right to also reject specific inspectors and inspection assistants after their initial designation, except when the State Party has already received notice of an inspection to which the inspectors and inspection assistants have been assigned. Specifically, this paragraph states that, subject to the provisions of paragraph 5, a State Party has the right at any time to object to an inspector or inspection assistant who has already been designated. (Paragraph 5 prohibits a State Party which has received notice of an inspection from rejecting an inspector or inspection assistant who has already been designated for that inspection.)
Paragraph 4 further states that the State Party shall notify the Technical Secretariat of its objection in writing and may include the reason for the objection. Finally, this paragraph states that such objection shall come into effect 30 days after receipt by the Technical Secretariat and the Technical Secretariat shall immediately inform the State Party concerned of the withdrawal of the designation of the inspector or inspection assistant.
Paragraph 5 of Part II states that a State Party that has been notified of an inspection shall not seek to have removed from the inspection team for that inspection any of the designated inspectors or inspection assistants named in the inspection team list. The purpose of this paragraph is to prevent a State Party from using its right to reject an inspector from delaying or hindering an inspection.
Paragraph 6 of Part II states that the number of inspectors or inspection assistants accepted by and designated to a State Party must be sufficient to allow for availability and rotation of appropriate numbers of inspectors and inspection assistants. The purpose of this paragraph is prohibit, without imposing specific numerical constraints, a State Party from using its right to reject inspectors and inspection assistants to interfere with the ability of the Technical Secretariat to carry out inspections of that State Party.
Paragraph 7 of Part II allows the Director–General to refer to the Executive Council any problems created by rejections of inspectors and inspection assistants by States Parties. Specifically, this paragraph states that if, in the opinion of the Director–General, the non–acceptance of proposed inspectors or inspection assistants impedes the designation of a sufficient number of inspectors or inspection assistants or otherwise hampers the effective fulfillment of the tasks of the Technical Secretariat, the Director–General shall refer the issue to the Executive Council.
The purpose of this paragraph is to provide a mechanism for dealing with abuse of the right to reject inspectors and inspection assistants.
Paragraph 8 of Part II provides for replacements of rejected inspectors and inspection assistants using the same procedures for designation. Specifically, this paragraph states that whenever amendments to the above–mentioned lists of inspectors and inspection assistants are necessary or requested, replacement inspectors and inspection assistants shall be designated in the same manner as set forth with respect to the initial list.
Paragraph 9 of Part II states that the members of the inspection team carrying out an inspection of a facility of a State Party located on the territory of another State Party shall be designated in accordance with the procedures set forth in this Annex as applied both to the inspected State Party and the host State Party. This means that where inspections of State Party take place on the territory of another State Party, inspectors and inspection assistants must be accepted by both the host State Party and the inspected State Party.
Section B (paragraphs 10 through 15) of Part II of the Verification Annex sets forth the diplomatic privileges and immunities to be accorded inspectors, inspection assistants and observers by States Parties during inspections and transit through States Parties. These privileges and immunities are similar to those granted inspectors under other arms control agreements such as the Intermediate–Range Nuclear Forces Treaty ("INF") and Strategic Arms Reduction Treaty ("START").
Paragraph 10 of Part II requires each State Party to grant, a priori, two–year visas for all accepted inspectors and inspection assistants. Specifically, this paragraph requires each State Party, within 30 days after acknowledgement of receipt of the list of inspectors and inspection assistants or of changes thereto, to provide multiple entry/exit and/or transit visas and other such documents to enable each inspector or inspection assistant to enter and to remain on the territory of that State Party for the purpose of carrying out inspection activities. This paragraph further states that these documents shall be valid for at least two years after their provision to the Technical Secretariat.
Note that this means each State Party must process visas for those inspectors and inspection assistants that it accepts at the same time it decides whether to initially reject an inspector or inspection assistant.
Paragraph 11 sets forth, in nine subparagraphs, the specific privileges and immunities that are to be accorded inspectors and inspection assistants, and the terms and conditions under which they are to be accorded. Specifically, this paragraph states that to exercise their functions effectively, inspectors and inspection assistants shall be accorded privileges and immunities as set forth in subparagraphs (a) to (i). This paragraph further states that privileges and immunities shall be granted to members of the inspection team for the sake of the Convention and not for the personal benefit of the individuals themselves. Finally, this paragraph states that such privileges and immunities shall be accorded to inspectors and inspection assistants 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.
Except as noted below, these are the same privileges and immunities accorded in other U.S. arms control agreements such as INF and START. Note also that the Convention can require only States Parties, not all States, to accord privileges and immunities, and therefore an inspector or inspection assistant inspecting a facility or location of a State Party on the territory of a non–State Party will not necessary enjoy diplomatic privileges and immunities with regard to the territorial non–State Party. However, the Article VII, paragraph 7 requirement that each State Party must provide assistance to the Technical Secretariat means that a State Party whose facilities are located on the territory of a non–State Party would have to seek such privileges and immunities for inspection team members from the non–State Party.
Subparagraph 11(a) grants the members of the inspection team the inviolability enjoyed by diplomatic agents pursuant to Article 29 of the Vienna Convention on Diplomatic Relations of 18 April 1961. Article 29 of the Vienna Convention provides that the person of a diplomatic agent shall be inviolable. Article 29 further provides that a diplomatic agent shall not be liable to any form of arrest or detention. Finally, Article 29 provides that the receiving State (i.e. for the purposes of the Convention, the inspected State Party and the Host State Party) shall treat the diplomatic agent with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
Subparagraph 11(b) grants the living quarters and office premises occupied by the inspection team carrying out inspection activities pursuant to the Convention the inviolability and protection accorded to the premises of diplomatic agents pursuant to paragraph 1 of Article 30 of the Vienna Convention on Diplomatic Relations. Paragraph 1 of Article 30 of the Vienna Convention provides that the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. The inviolability and protection of the mission is spelled out in Article 22 of the Vienna Convention. Specifically, Paragraph 1 of Article 22 provides that the premises of a mission shall be inviolable and the agents of the receiving State, i.e., for the purposes of the Convention, the inspected State Party and the host State Party, may not enter them, except with the consent of the head of the mission. Paragraph 2 of Article 22 provides that the receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. Paragraph 3 of Article 22 provides that the premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
Note that, unlike other U.S. arms control agreements, such as INF or START, even short–term inspectors enjoy inviolable living quarters, i.e. even hotel rooms are protected. The purpose of this was to accord additional protection to inspectors in potentially hostile situations such as challenge inspections.
Subparagraph 11(c) of Part II grants the papers and correspondence, including records, of the inspection team the inviolability accorded to all papers and correspondence of diplomatic agents pursuant to Article 30, paragraph 2 of the Vienna Convention on Diplomatic Relations. In general, Paragraph 2 of Article 30 of the Vienna Convention provides that the papers, correspondence, and, with certain exceptions, the property of a diplomatic agent shall enjoy inviolability.
Subparagraph 11(c) also grants the inspection team the right to use codes for their communications with the Technical Secretariat.
Subparagraph 11(d) states that samples and approved equipment carried by members of the inspection team shall be inviolable subject to provisions contained in the Convention, and exempt from all customs duties. Note that paragraphs 52 through 58 of this Part contain the general rules regarding samples, while paragraphs 27 through 30 contain the general rules regarding approved equipment. Subparagraph 11(d) also states that hazardous samples shall be transported in accordance with relevant regulations.
Subparagraph 11(e) states that the members of the inspection team shall be accorded the immunities accorded to diplomatic agents pursuant to paragraphs 1, 2 and 3 of Article 31 of the Vienna Convention on Diplomatic Relations. Paragraph 1 of Article 31 of the Vienna Convention provides that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State (i.e., for the purposes of the Convention, the inspected State Party and the Host State Party) and shall, with certain exceptions, also enjoy immunity from its civil and administrative jurisdiction. Paragraph 2 of Article 31 provides that a diplomatic agent is not obliged to give evidence as a witness. Paragraph 3 of Article 31 prohibits most legal actions, except in certain limited cases.
Note that, nonetheless, paragraphs 13 and 14 of this Part require members of the inspection team to respect local laws and allow for waiver of immunity for violations.
Subparagraph 11(f) states that 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. Article 34 of the Vienna Convention provides that diplomatic agents shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except for: indirect taxes normally incorporated into the prices of goods; real estate taxes and other fees related to property situated in the territory of the receiving State (unless held for the sending State for purposes of the mission); estate taxes, except on personal movable property; charges for specific services rendered; income and capital taxes related to private income and commercial investments made in the receiving State (i.e., for purposes of the Convention, the inspected State Party and the Host State Party); and registration, court or record fees, mortgage dues and stamp duty with respect to immovable property, except for the premises of the mission. Thus, for purposes of the Convention, the living quarters and working spaces of the inspection team are exempt from all national, regional or municipal dues and taxes.
Note that this provision differs from U.S. arms control agreements negotiated with the former Soviet Union, such as INF and START, which allow this exemption from dues and taxes for only long–term inspectors. The purpose of this provision is provide minimal constraints on international inspectors as they conduct their activities in a wide variety of economic, legal and political systems.
Subparagraph 11(g) states that 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.
Subparagraph 11(h) states that 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.
Subparagraph 11(i) states that 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.
Paragraph 12 of Part II sets forth the privileges and immunities to be accorded when the inspection team is in transit. Specifically, this paragraph states that when transiting the territory of non–inspected States Parties, the members of the inspection team shall be accorded the privileges and immunities enjoyed by diplomatic agents pursuant to paragraph 1 of Article 40 of the Vienna Convention on Diplomatic Relations. Paragraph 1 of Article 40 of the Vienna Convention provides that if a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return, which shall also apply to family members who enjoy privileges or immunities who are accompanying the diplomatic agent, or traveling separately to join the agent or to return to their country.
Paragraph 12 also states that papers and correspondence, including records, and samples and approved equipment, carried by members of the inspection team, shall be accorded the privileges and immunities set forth in subparagraphs 11(c) and (d), i.e. inviolability. Approved equipment is the devices and instruments necessary for the performance of the inspection team's duty, including administrative supplies and recording materials, that have been certified by the Technical Secretariat as necessary to fulfill the inspection requirements (paragraph 1 of Part I of this Annex.)
Paragraph 13 of Part II provides for possible abuses of privileges and immunities. Specifically, this paragraph states that without prejudice to their privileges and immunities the members of the inspection team shall be obliged to respect the laws and regulations of the inspected State Party or Host State and, to the extent that is consistent with the inspection mandate, shall be obliged not to interfere in the internal affairs of that State. This paragraph further states that if the inspected State Party or Host State Party considers that there has been an abuse of privileges and immunities specified in this Annex, consultations shall be held between the State Party and the Director–General to determine whether such an abuse has occurred and, if so determined, to prevent a repetition of such an abuse.
Paragraph 14 of Part II allows for waiver of the privileges and immunities of the members of the inspection team by the Director–General when members have abused their privileges and immunities. Specifically, this paragraph states that the immunity from jurisdiction of members of the inspection team may be waived by the Director–General in those cases when the Director–General is of the opinion that immunity would impede the course of justice and that it can be waived without prejudice to the implementation of the provisions of the Convention. This paragraph further states that waiver must always be express.
Paragraph 15 of Part II states that observers shall be accorded the same privileges and immunities accorded to inspectors pursuant to this section, except for those accorded pursuant to subparagraph 11(d). Subparagraph 11(d) gives inviolability to samples and approved equipment. The purpose of this exception is to prevent observers, who are present only on challenge inspections, from bringing or removing unauthorized samples or approved equipment to or from an inspection site under the protection of their privileges and immunities. (Other provisions regarding observers are contained in paragraph 12 of Article IX and paragraphs 53 through 56 of Part X of this Annex.)
Section C (paragraphs 16 through 30) of Part II of the Verification Annex contains the standing arrangements for inspections regarding points of entry, respective rights and obligations when more than one State is involved in an inspection, use of non–scheduled aircraft, administrative arrangements, and use of approved equipment.
Paragraph 16 of Part II requires each State Party to designate points of entry for inspection teams. Specifically, this paragraph requires each State Party to designate points of entry and to supply the required information to the Technical Secretariat within 30 days after the Convention enters into force for it. This paragraph further states that these points of entry shall be such that the inspection team can reach any inspection site from at least one point of entry within 12 hours.
Note that this corresponds to the general rule that States Parties must assist an inspection team to reach an inspection site within 12 hours of arrival at the point of entry (paragraph 36 of this Part). However, for inspections of undeclared sites, i.e. challenge inspections, a State Party has 36 hours to transport the inspection team to the inspection site (paragraph 18 of Part X). Therefore, this means that a State Party will probably designate entry points from which it can reach any declared site, i.e. chemical weapons production, destruction or storage facilities, and scheduled chemicals facilities and other chemical production facilities, within 12 hours, provided it can also transport an inspection team from these points of entry to anywhere on its territory or any other place under its jurisdiction or control within 36 hours.
Finally, paragraph 16 states that locations of points of entry shall be provided to all States Parties by the Technical Secretariat.
Paragraph 17 of Part II provides for changes of points of entry. Specifically, this paragraph permits each State Party to change its points of entry by giving notice of such change to the Technical Secretariat. This paragraph further states that changes shall become effective 30 days after the Technical Secretariat receives such notification to allow appropriate notification to all States Parties.
Paragraph 18 of Part II provides for consultations between the Technical Secretariat and a State Party if timely conduct of inspections would be affected by the choice of points of entry. Specifically, this paragraph states that if the Technical Secretariat considers that there are insufficient points of entry for the timely conduct of inspections or that changes to the points of entry proposed by a State Party would hamper such timely conduct of inspections, it shall enter into consultations with the State Party concerned to resolve the problem.
Paragraphs 19 through 21 clarify the obligations and rights of States Parties where the facility or area of a State is located on the territory of another State. Paragraph 19 concerns the facility or area of a State Party located on the territory of another State Party. Paragraph 20 concerns the facility or area of a State Party located on the territory of a non State Party. Paragraph 21 concerns the facility or area of a non–State Party located on the territory of a State Party.
Paragraph 19 of Part II delineates the respective rights and obligations of States Parties in the case of an inspection of the facility or area of a State Party located on the territory of another State Party. Specifically, this paragraph states that in cases where facilities or areas of an inspected State Party are located on the territory of a Host State Party or where the access from the point of entry to the facilities or areas subject to inspection requires transit through the territory of another State Party, the inspected State Party shall exercise the rights and fulfill the obligations concerning such inspections in accordance with this Annex. This paragraph further states that the Host State Party shall facilitate the inspection of those facilities or areas and shall provide for the necessary support to enable the inspection team to carry out its tasks in a timely and effective manner. Finally, this paragraph states that States Parties through whose territory transit is required to inspect facilities or areas of an inspected State Party shall facilitate such transit.
This means that where two States Parties are involved in an inspection, the State Party whose facilities or areas are involved in the inspection is given the primary responsibility and authority with respect to the inspection.
Paragraph 20 of Part II sets forth the rights and obligations of a State Party in the case of an inspection of the facility or area of a State Party located on the territory of a State that is not a Party to the Convention. Specifically, this paragraph states that in cases where facilities or areas of an inspected State Party are located on the territory of a non–State Party, the inspected State Party shall take all necessary measures to ensure that inspections of those facilities or areas can be carried out in accordance with the provisions of this Annex. This paragraph further states that a State Party that has one or more facilities or areas on the territory of a non State Party shall take all necessary measures to ensure acceptance by the Host State of inspectors and inspection assistants designated to that State Party, and if the inspected State Party is unable to ensure access, it shall demonstrate that it took all necessary measures to ensure access.
The purpose of paragraph 20 is to acknowledge that the legal reach of the Convention on the territory of a State that is not a Party to the Convention is limited by that State's sovereign rights. Accordingly, a State Party legally may not be able to fully comply with its obligations with regard to inspections where the consent of a territorial non State Party is necessary in order to provide access for an inspection team. Therefore, in such a situation a State Party is required to do everything possible to allow the inspection. However, if the territorial non State Party refuses to permit the inspection, then the inspected State Party is not in breach of its obligation to allow an inspection if the inspected State Party shows that it exercised its best efforts to obtain consent from the territorial non State Party to conduct the inspection.
Note that the term "facility or area of a State Party" is not defined in the Convention. Nonetheless, the negotiators generally understood the term to refer to such things as military bases (i.e. places under a State Party's jurisdiction or control) as well as to other government–owned facilities, but not to facilities or areas owned by private companies, even if the companies are incorporated by the State Party. Responsibility for inspections of privately–owned facilities or areas is considered to lie with the State on which they are situated, regardless of where they are incorporated, except as provided in paragraph 21 as discussed below.
Paragraph 21 of Part II sets forth the rights and obligations of a State Party in the case of an inspection of the facility or area of a State that is not a Party to the Convention that is located on the territory of the State Party, i.e. the opposite situation from paragraph 20. The purpose of this paragraph is similar to that of paragraph 20. However, here the exceptions to the obligations of a State Party are more narrowly drawn because in this case the State Party is the territorial entity and the facilities or areas of a non–State Party are present with the permission of the State Party.
Specifically, paragraph 21 states that in cases where the facilities or areas sought to be inspected are located on the territory of a State Party, but in a place under the jurisdiction or control of a State not Party to the Convention, the State Party shall take all necessary measures as would be required of an inspected State Party and a Host State Party to ensure that inspections of such facilities or areas can be carried out in accordance with the provisions of this Annex. This means that while such a State Party is not an inspected State Party, it nevertheless has the same obligations as an inspected State Party. For example, if consent is given by the non–State Party for an inspection, the State Party must assist the inspection team in conducting the inspection. In addition, the State Party must fulfill the obligations of a host State Party, e.g. it must allow the inspection team to transit its territory.
Paragraph 21 further states that if the State Party is unable to ensure access to those facilities or areas, it shall demonstrate that it took all necessary measures to ensure access. Note that this exception does not apply to all facilities or areas of a non–State Party, but only to those that are located in a place under the jurisdiction or control of that non–State Party. This means that a State Party must provide access to any facility or area that is on its territory, even if it is owned or incorporated by a non–State Party, unless such facility or area is also located in a place under the jurisdiction or control of the non–State Party.
In addition, paragraph 21 specifies that it does not apply where the facilities or areas sought to be inspected are those of the State Party. This means that a State Party must provide access to all of its own facilities or areas on its territory, regardless of where they are located. For example, State Party X must grant access to a State Party X facility that is located on a military base of non–State Party Y located on X's territory.
Finally, note that for challenge inspections, in each of the cases dealt with in paragraphs 19 through 21, the State Party remains under the obligation to make every reasonable effort to demonstrate compliance (subparagraph 11(a) of Article IX), and so must still take steps not involving actual inspection to demonstrate its compliance when the refusal of a non–State Party prevents access.
Paragraph 22 of Part II provides for the use of non–scheduled aircraft by the inspection team. Specifically, this paragraph states that for inspections pursuant to Article IX (i.e. challenge inspections) and for other inspections where timely travel is not feasible using scheduled commercial transport, an inspection team may need to utilize aircraft owned or chartered by the Technical Secretariat. This paragraph further states that within 30 days after the Convention enters into force for it, each State Party shall inform the Technical Secretariat of the standing diplomatic clearance number for non–scheduled aircraft transporting inspection teams and equipment necessary for inspection into and out of the territory in which an inspection site is located. Finally, this paragraph states that aircraft routings to and from the designated point of entry shall be along established international airways that are agreed upon between the States Parties and the Technical Secretariat as the basis for such diplomatic clearance.
The purpose of this paragraph is to provide for the possibility of using non–scheduled aircraft where the use of commercial transportation is not feasible. Such circumstances could arise when the commercial transportation is not reliable, is not scheduled to fly at the time required by the inspection team, or is unavailable due to the short inspection notice (e.g., 12 hours for challenge inspections.) Note, however, that challenge inspection teams are not prohibited from using commercial transportation.
Paragraph 23 of Part II provides for the filing of a flight plan for the use of non–scheduled aircraft by an inspection team. Specifically, this paragraph states that when a non–scheduled aircraft is used, the Technical Secretariat shall provide the inspected State Party with a flight plan, through the National Authority, for the aircraft's flight from the last airfield prior to entering the airspace of the State in which the inspection site is located to the point of entry, not less than six hours before the scheduled departure time from that airfield. This paragraph further states that such a plan shall be filed in accordance with the procedures of the International Civil Aviation Organization applicable to civil aircraft. Finally, this paragraph states that for its owned or chartered flights, the Technical Secretariat shall include in the remarks section of each flight plan the standing diplomatic clearance number and the appropriate notation identifying the aircraft as an inspection aircraft.
Note that in order not to exceed the notice time provided to an inspected State Party for a challenge inspection (i.e. 12 hours), this paragraph requires that the non–scheduled aircraft be able to fly from the last airfield to the point of entry within 6 hours.
Paragraph 24 of Part II requires the inspected State Party to ensure approval of the flight plan. Specifically, this paragraph states that not less than three hours prior to the scheduled departure of the inspection team from the last airfield prior to entering the airspace of the State in which the inspection is to take place, the inspected State Party or Host State Party shall ensure that the flight plan filed in accordance with paragraph 23 is approved so that the inspection team may arrive at the point of entry by the estimated arrival time.
Paragraph 25 of Part II requires the inspected State Party to provide certain amenities for non–scheduled aircraft, most of which must be paid for by the Technical Secretariat. Specifically, this paragraph requires the inspected State Party to provide parking, security protection, servicing and fuel as required by the Technical Secretariat for the aircraft of the inspection team at the point of entry when such aircraft is owned or chartered by the Technical Secretariat. This paragraph further states that such aircraft shall not be liable for landing fees, departure tax, and similar charges and that the Technical Secretariat shall bear the cost of such fuel, security protection and servicing.
Note that paragraphs 23 through 25 are similar to those found in other recent arms control agreements such as the Treaty on Open Skies and START.
Paragraph 26 of Part II requires the inspected State Party to also provide certain basic amenities to the inspection team, all of which, however, are to be paid for by the Organization. Specifically, this paragraph requires the inspected State Party to provide or arrange for the amenities necessary for the inspection team such as communication means, interpretation services to the extent necessary for the performance of interviewing and other tasks, transportation, working space, lodging, meals and medical care. This paragraph also states that in this regard, the inspected State Party shall be reimbursed by the Organization for such costs incurred by the inspection team.
Paragraph 27 of Part II provides for the establishment of a list of approved equipment for use by inspection teams on inspections. Specifically, this paragraph states that subject to paragraph 29 (i.e. the right of the inspected State Party to inspect equipment to verify its identity), there shall be no restriction by the inspected State Party on the inspection team bringing into the inspection site such equipment, approved in accordance with paragraph 28, which the Technical Secretariat has determined to be necessary to fulfill the inspection requirements. This paragraph further states that the Technical Secretariat shall prepare and, as appropriate, update a list of approved equipment, which may be needed for the purposes described above, and regulations governing such equipment which shall be in accordance with the Verification Annex.
This paragraph also states that in establishing the list of approved equipment and these regulations, the Technical Secretariat shall ensure that safety considerations for all the types of facilities at which such equipment is likely to be used are taken fully into account. Finally, this paragraph states that a list of approved equipment shall be considered and approved by the Conference pursuant to paragraph 21(i) of Article VIII, i.e. based on reports prepared by the Preparatory Commission.
Note that for challenge inspections, the provisions of paragraph 47 of Part X of this Annex take precedence where different from the provisions of paragraphs 52 through 58 of this part, e.g. the inspection team and the inspected State Party shall negotiate: the extent of access to any particular place or places within the final and requested perimeters; the particular activities, including sampling, to be conducted by the inspection team; the performance of particular activities by the inspected State Party; and the provision of particular information by the inspected State Party. This means that for challenge inspections, the inspected State Party can negotiate restrictions on the use of approved equipment within the inspection site.
Paragraph 28 of Part II provides for sole control of approved equipment by the Technical Secretariat and requires the Technical Secretariat to tailor the equipment used to the specific type of inspection to be conducted. Specifically, this paragraph states that the equipment shall be in the custody of the Technical Secretariat and be designated, calibrated and approved by the Technical Secretariat. This paragraph further states that the Technical Secretariat shall, to the extent possible, select that equipment which is specifically designed for the specific kind of inspection required. Finally, this paragraph states that designated and approved equipment shall be specifically protected against unauthorized alteration.
Paragraph 29 of Part II gives the inspected State Party a limited right to inspect and exclude equipment. Specifically, this paragraph states that the inspected State Party shall have the right, without prejudice to the prescribed time–frames, to inspect the equipment in the presence of inspection team members at the point of entry, that is, to check the identity of the equipment brought in or removed from the territory of the inspected State Party or the Host State. This paragraph also states that to facilitate such identification, the Technical Secretariat shall attach documents and devices to authenticate its designation and approval of the equipment.
This paragraph further states that the inspection of the equipment shall also ascertain to the satisfaction of the inspected State Party that the equipment meets the description of the approved equipment for the particular type of inspection and that the inspected State Party may exclude equipment not meeting that description or equipment without the above–mentioned authentication documents and devices. Finally, this paragraph states that procedures for the inspection of equipment shall be considered and approved by the Conference pursuant to paragraph 21(i) of Article VIII, i.e. based on drafts prepared by the Preparatory Commission. Note that these procedures are expected to address the timing and intrusiveness of such examinations.
Paragraph 30 of Part II provides for the use by the inspection team of other than approved equipment. Specifically, this paragraph states that in cases where the inspection team finds it necessary to use equipment available on site not belonging to the Technical Secretariat and requests the inspected State Party to enable the team to use such equipment, the inspected State Party shall comply with the request to the extent it can. Note that the inspected State Party is only required to respond to requests for use of equipment at an inspection site to extent that it is able. Therefore, if, for example, a private company does not wish its equipment to be used, the inspected State Party may refuse the request of an inspection team.
Section D (paragraphs 31 through 37) of Part II of the Verification Annex sets forth provisions for pre–inspection activities, specifically, notification, entry of the inspection team into the territory of the inspected State Party or Host State, transit to the inspection site, and pre–inspection briefing of the inspection team.
Paragraph 31 of Part II establishes the general rule that the Director–General shall notify the State Party prior to the planned arrival of the inspection team at the point of entry and within the prescribed time–frames, where specified, of its intention to carry out an inspection.
Paragraph 32 of Part II contains the information to be provided in a notification of inspection. Specifically, each notification must include the type of inspection, the point of entry, the date and estimated time of arrival at the point of entry, the means of arrival at the point of entry, the site to be inspected, the names of inspectors and inspection assistants, and, if appropriate, aircraft clearance for special flights.
Paragraph 33 of Part II requires the inspected State Party to acknowledge the receipt of a notification by the Technical Secretariat of an intention to conduct an inspection within one hour after receipt of such notification.
Paragraph 34 of Part II states that in the case of an inspection of a facility of a State Party located on the territory of another State Party, both States Parties shall be simultaneously notified in accordance with paragraphs 31 and 32, i.e. the provision of required notification information by the Technical Secretariat. This means that when more than one State Party is involved in an inspection, all States Parties involved receive the same information regarding the inspection. Note that there is no requirement for the Technical Secretariat to provide such information to a host State that is not a Party to the Convention because there are no formal ties between the Organization and such States. However, such information presumably would be provided by the inspected State Party, pursuant to its obligation under paragraph 20 of Part II to take all necessary measures to ensure that inspections in such situations can be carried out.
Paragraph 35 of Part II requires an inspected State Party or a Host State Party to ensure immediate entry and safe conduct to an inspection team. Specifically, this paragraph requires a inspected State Party or Host State Party which has been notified of the arrival of an inspection team to ensure the inspection team's immediate entry into the territory and, through an in–country escort or by other means, to do everything in its power to ensure the safe conduct of the inspection team and its equipment and supplies, from its point of entry to the inspection site(s) and to a point of exit.
Paragraph 36 of Part II requires the inspected State Party or Host State Party to, as necessary, assist the inspection team in reaching the inspection site no later than 12 hours from the arrival at the point of entry. Note that, in general, the inspected State Party, or if applicable, the host State Party, is not explicitly required to actually transport the inspection team, nor are they required to guarantee that the inspection team arrives within the prescribed time–frame. However, pursuant to paragraphs 14, 15(b), 18 and 19 of Part X of this Annex, for challenge inspections the inspected State Party must meet these requirements.
Paragraph 37 of Part II provides for a pre–inspection briefing of the inspection team by representatives of the inspection site. Specifically, this paragraph states that upon arrival at the inspection site and before the commencement of the inspection, the inspection team shall be briefed by facility representatives, with the aid of maps and other documentation as appropriate, on the facility, the activities carried out there, safety measures and administrative and logistic arrangements necessary for the inspection. This paragraph further states that the time spent for the briefing shall be limited to the minimum necessary and in any event not exceed three hours.
Section E (paragraphs 38 through 60) of Part II of the Verification Annex sets forth provisions for the conduct of inspections. Specifically, this includes general rules, provisions on safety and communications, inspection team and inspected State Party rights, and provisions on the collection, handling and analysis of samples, extension of inspection duration, and debriefing by the inspection team. Note that additional State Party rights are set forth in Section C of the Confidentiality Annex (measures to protect sensitive installations and prevent disclosures of confidential data in the courses of on–site verification activities).
Paragraph 38 of Part II establishes the general principle that the actions of inspection teams must be in accordance with the Convention. Specifically, this paragraph states that the members of the inspection team shall discharge their functions in accordance with the provisions of the Convention, as well as rules established by the Director–General and facility agreements concluded between States Parties and the Organization.
Paragraph 39 of Part II requires the inspection team to strictly observe the inspection mandate issued by the Director–General and to refrain from activities going beyond this mandate.
Paragraph 40 of Part II sets forth the inspection team's responsibilities regarding its interaction with the operation of an inspected facility. Specifically, this paragraph states that the activities of the inspection team shall be so arranged as to ensure the timely and effective discharge of its functions and the least possible inconvenience to the inspected State Party or Host State and disturbance to the facility or area inspected. This paragraph further states that the inspection team shall avoid unnecessarily hampering or delaying the operation of a facility and avoid affecting its safety and, in particular, shall not operate any facility. Finally, this paragraph states that if inspectors consider that, to fulfill their mandate, particular operations should be carried out in a facility, they shall request the designated representative of the inspected facility to have them performed, and the representative shall carry out the request to the extent possible.
Paragraph 41 of Part II gives the inspected State Party the right to accompany inspectors at all times, so long as it does not interfere with the inspectors' activities. Specifically, this paragraph states that in the performance of their duties on the territory of an inspected State Party or Host State, the members of the inspection team shall, if the inspected State Party so requests, be accompanied by representatives of the inspected State Party, but the inspection team must not thereby be delayed or otherwise hindered in the exercise of its functions.
Note that the inspected State Party is not required to accompany inspectors and there may be instances, e.g. routine inspections of chemical industry, where escorts are not provided.
Paragraph 42 of Part II states that detailed procedures for the conduct of inspections shall be developed for inclusion in the inspection manual by the Technical Secretariat, taking into account guidelines to be considered and approved by the Conference pursuant to paragraph 21(i) of Article VIII, i.e. based on drafts prepared by the Preparatory Commission.
Paragraph 43 of Part II requires the inspection team to observe the safety rules pertaining to each inspected facility. Specifically, this paragraph states that in carrying out their activities, inspectors and inspection assistants shall observe safety regulations established at the inspection site, including those for the protection of controlled environments within a facility and for personal safety. This paragraph further states that in order to implement these requirements, appropriate detailed procedures shall be considered and approved by the Conference pursuant to paragraph 21(i) of Article VIII, i.e. based on drafts prepared by the Preparatory Commission.
Paragraph 44 of Part II gives the inspection team the right, at all times, to use telecommunication to communicate with its headquarters and among its members. Specifically, this paragraph states that inspectors shall have the right throughout the in–country period to communicate with the Headquarters of the Technical Secretariat. This paragraph further states that for this purpose they may use their own, duly certified, approved equipment and may request that the inspected State Party or Host State Party provide them with access to other telecommunications. Finally, this paragraph states that the inspection team shall have the right to use its own two–way system of radio communications between personnel patrolling the perimeter and other members of the inspection team.
Paragraph 45 of Part II establishes a general principle of unimpeded access for inspectors, subject to particular provisions for specific inspections. Specifically, this paragraph states that the inspection team shall, in accordance with the relevant Articles and Annexes of the Convention as well as with facility agreements and procedures set forth in the inspection manual, have the right to unimpeded access to the inspection site. This paragraph also states that the items to be inspected will be chosen by the inspectors.
The purpose of this provision is to establish that while the activities of an inspection team are regulated by provisions of the Convention, facility agreements, and the detailed inspection procedures contained in the inspection manual, nonetheless, an inspected State Party is expected to provide unimpeded access to an inspection site. This means that in balancing requests for access and the need to protect non–chemical weapons related information, as provided for by the Confidentiality Annex, the inspected State Party is required to provide such access as is consistent with the provisions of the Convention permitting access to be constrained.
Note, however, that for challenge inspections, the provisions of paragraph 47 of Part X of this Annex take precedence where they differ from the provisions of paragraphs 45 through 51 of this Part, i.e. the inspection team and the inspected State Party shall negotiate the extent of access to any particular place or places within the final and requested perimeters, the particular activities, including sampling, to be conducted by the inspection team, the performance of particular activities by the inspected State Party and the provision of particular information by the inspected State Party. This means that, for challenge inspections, within the final perimeter the inspected State Party can negotiate conditions that restrict such things as access within the inspection site, sampling, interviews with personnel, inspection of documents, and taking photographs.
Paragraph 46 of Part II gives the inspection team the limited right to interview the personnel of an inspected facility. Specifically, this paragraph gives inspectors the right to interview any facility personnel in the presence of representatives of the inspected State Party with the purpose of establishing relevant facts. This paragraph further states that inspectors shall only request information and data which are necessary to the conduct of the inspection, and the inspected State Party shall furnish such information upon request. This paragraph gives the inspected State Party the right to object to questions posed to the facility personnel if those questions are deemed not relevant to the inspection. This paragraph also states that if the head of the inspection team objects and states their relevance, the questions shall be provided in writing to the inspected State Party for reply.
Finally, this paragraph states that the inspection team may note any refusal to permit interviews or to allow questions to be answered and any explanations given, in that part of the inspection report that deals with the cooperation of the inspected State Party.
Note that specific representatives of the facility are not absolutely required to answer questions, and thus, with regard to this provision, their Fifth Amendment rights of personnel at U.S. facilities against any possible self–incrimination are protected. However, the inspected State Party is required to provide information and data that are necessary to the conduct of the inspection. Additionally, if an inspected State Party does not require or allow personnel to answer questions, for whatever reason, this will almost certainly be noted in the inspection report.
Paragraph 47 of Part II gives inspectors the right to inspect documentation and records they deem relevant to the conduct of their mission.
Paragraph 48 of Part II sets forth the procedures for taking photographs during an inspection. Specifically, this paragraph gives inspectors the right to have photographs taken at their request by representatives of the State Party or of the inspected facility. This paragraph further states that the capability to take instant development photographic prints shall be available. This paragraph also states that the inspection team shall determine whether photographs conform to those requested and, if not, repeat photographs shall be taken. Finally, this paragraph states that the inspection team and the inspected State Party shall each retain one copy of every photograph. Note that, while there are no limits on what can be photographed, the inspection team itself does not have the right to take photographs, only to direct that the inspected State Party take them. The purpose of this is to reduce opportunities for the taking of photographs not connected with the inspection.
Paragraph 49 of Part II gives the representatives of the inspected State Party the right to observe all verification activities carried out by the inspection team.
Paragraph 50 of Part II states that the inspected State Party shall receive copies, at its request, of the information and data gathered about its facility(ies) by the Technical Secretariat.
Paragraph 51 of Part II sets forth procedures for clarifying ambiguities that arise during an inspection. Specifically, this paragraph gives inspectors the right to request clarifications in connection with ambiguities that arise during an inspection, which shall be made promptly through the representative of the inspected State Party. This paragraph further states that the representative of the inspected State Party shall provide the inspection team, during the inspection, with such clarification as may be necessary to remove the ambiguity. This paragraph also states that if questions relating to an object or a building located within the inspection site are not resolved, the object or building shall, if requested, be photographed for the purpose of clarifying its nature and function. Note that both the inspection team and the inspected State Party may require photographs to be taken. Finally, this paragraph states that if the ambiguity cannot be removed during the inspection, the inspectors shall notify the Technical Secretariat immediately and the inspectors shall include in the inspection report any such unresolved question, relevant clarifications, and a copy of any photographs taken.
Paragraph 52 of Part II gives the inspection team the right to have samples taken for them and the possibility of their taking samples. Specifically, this paragraph states that representatives of the inspected State Party or of the inspected facility shall take samples at the request of the inspection team in the presence of inspectors. This paragraph also states that if so agreed in advance with the representatives of the inspected State Party or of the inspected facility, the inspection team may take samples itself.
Note that the inspection team itself does not have the right to take samples, only to direct that the inspected State Party take them. If so agreed in advance, however, the inspection team may take samples itself. As with photographs, the purpose of this is to lessen opportunities for taking samples not connected with the inspection. Note also, however, that for challenge inspections, the provisions of paragraph 47 of Part X of this Annex take precedence where different from the provisions of paragraphs 52 through 58 of this Part, e.g. the inspection team and the inspected State Party shall negotiate the extent of access to any particular place or places within the final and requested perimeters, the particular activities, including sampling, to be conducted by the inspection team, the performance of particular activities by the inspected State Party and the provision of particular information by the inspected State Party. This means that, for challenge inspections, within the final perimeter the inspected State Party can negotiate conditions that restrict activities regarding sampling, e.g., where, when and how samples are taken, whether samples are removed from the site, and how samples are analyzed.
Paragraph 53 of Part II sets forth the procedures for the on–site analysis of samples. Specifically, this paragraph states that where possible, the analysis of samples shall be performed on–site and the inspection team shall have the right to perform on–site analysis of samples using approved equipment brought by it. This paragraph further states that at the request of the inspection team, the inspected State Party shall, in accordance with agreed procedures (i.e. as agreed between the inspection team and the inspected State Party and expected Technical Secretariat guidelines), provide assistance for the analysis of samples on–site. This paragraph states that alternatively, the inspection team may request that appropriate analysis on–site be performed in its presence.
Paragraph 54 of Part II gives the inspected State Party the right to retain portions of all samples taken or take duplicate samples and be present when samples are analyzed on–site. This means that the inspected State Party has two options for providing a control for each sample –– retaining a portion of the original sample or taking a duplicate sample. Regardless of which method is used, the inspected State Party has the right to be present when samples are analyzed on–site.
Paragraph 55 of Part II gives the inspection team the right to take samples from the site for analysis at designated laboratories. Specifically, this paragraph states that the inspection team shall, if it deems it necessary, transfer samples for analysis off–site at laboratories designated by the Organization. Note that designation of laboratories in different countries is a political as well as technical decision, as reflected by the fact that the Organization decides the designation while the Director–General, pursuant to subparagraph 56(b) of this Part certifies the designated laboratories.
Paragraph 56 sets forth, in four subparagraphs, general rules regarding the conduct of off–site analysis of samples. Specifically, this paragraph states that the Director–General shall have the primary responsibility for the security, integrity and preservation of samples and for ensuring that the confidentiality of samples transferred for analysis off–site is protected. This paragraph further states that the Director–General shall do so in accordance with procedures, to be considered and approved by the Conference pursuant to paragraph 21(i) of Article VIII (i.e. based on reports prepared by the Preparatory Commission) for inclusion in the inspection manual.
Subparagraph 56(a) requires the Director–General to establish a stringent regime governing the collection, handling, transport and analysis of samples.
Subparagraph 56(b) requires the Director–General to certify the laboratories designated to perform different types of analysis.
Subparagraph 56(c) requires the Director–General to oversee the standardization of equipment and procedures at these designated laboratories, mobile analytical equipment and procedures, and monitor quality control and overall standards in relation to the certification of these laboratories, mobile equipment and procedures.
Subparagraph 56(d) requires the Director–General to select from among the designated laboratories those which shall perform analytical or other functions in relation to specific investigations.
Paragraph 57 of Part II sets forth the procedures for analyzing samples in off–site laboratories. Specifically, this paragraph states that when off–site analysis is to be performed, samples shall be analyzed in at least two designated laboratories. The purpose of this provision is to minimize erroneous results by conducting separate independent analyses of samples. Note that this does not exclude the laboratories in the inspected State Party or in the requesting State Party from conducting the analysis, provided they are designated laboratories. This paragraph also requires the Technical Secretariat to ensure the expeditious processing of the analysis (i.e. the analytical result).
Finally, this paragraph states that the samples shall be accounted for by the Technical Secretariat and any unused samples or portions thereof shall be returned to the Technical Secretariat.
Paragraph 58 of Part II describes the procedure for reporting a sample analysis. Specifically, this paragraph requires the Technical Secretariat to compile the results of the laboratory analysis of samples relevant to compliance with the Convention and include them in the final inspection report. This paragraph also requires the Technical Secretariat to include in the report detailed information concerning the equipment and methodology employed by the designated laboratories.
Paragraph 59 of Part II states that periods of inspection may be extended by agreement with the representative of the inspected State Party.
Paragraph 60 of Part II sets forth the procedures for providing the preliminary results of the inspection to the inspected State Party. Specifically, this paragraph states that upon completion of an inspection the inspection team shall meet with representatives of the inspected State Party and the personnel responsible for the inspection site to review the preliminary findings of the inspection team and to clarify any ambiguities. This paragraph requires the inspection team to provide to the representatives of the inspected State Party its preliminary findings in written form according to a standardized format, together with a list of any samples and copies of written information and data gathered and other material to be taken off site. This paragraph further states that the document shall be signed by the head of the inspection team and that in order to indicate that he has taken notice of the contents of the document, the representative of the inspected State Party shall countersign the document. Finally, this paragraph states that this meeting shall be completed not later than 24 hours after the completion of the inspection.
Section F (paragraph 61) of Part II of the Verification Annex states that upon completion of the post–inspection procedures, the inspection team shall leave, as soon as possible, the territory of the inspected State Party or the Host State.
Section G (paragraphs 62 through 65) of Part II of the Verification Annex sets forth provisions regarding the final report of an inspection.
Paragraph 62 of Part II sets forth the contents of the final report of an inspection. Specifically, this report states that not later than 10 days after the inspection, inspectors shall prepare a factual, final report on the activities conducted by them and on their findings. This paragraph requires that the final report only contain facts relevant to compliance with the Convention, as provided for under the inspection mandate and also provide information as to the manner in which the inspected State Party cooperated with the inspection team. This paragraph also states that differing observations made by inspectors may be attached to the report. Finally, this paragraph requires that the report be kept confidential. (Procedures for handling confidential information are contained in Section A of the Confidentiality Annex.) Note that such reports of routine inspections are not required to be provided to all States Parties. Reports of challenge inspections, however, must be provided to all States Parties pursuant to paragraph 21 of Article IX. Note further that paragraph 2(b)(ii) of the Confidentiality Annex requires the Director–General to provide States Parties with general reports on the results and effectiveness of verification activities. The reports of routine inspections, as well as of challenge inspections, are part of the data required to ensure States Parties of the continued compliance with the Convention by other States Parties.
Paragraph 63 of Part II provides for comments by the inspected State Party on the final report and for final submission to the Director–General. Specifically, this paragraph states that the final report shall immediately be submitted to the inspected State Party. This paragraph further states that any written comments, which the inspected State Party may immediately make on its findings, shall be annexed to the final report. Finally, this paragraph states that the final report together with annexed comments made by the inspected State Party shall be submitted to the Director–General not later than 30 days after the inspection.
Paragraph 64 of Part II states that should the report contain uncertainties, or should cooperation between the National Authority and the inspectors not measure up to the standards required, the Director–General shall approach the State Party for clarification. This means that if the inspection reveals contested data, compliance concerns or other ambiguities, or if representatives of a facility or the inspected State Party or host State Party did not cooperate adequately with the inspection, the Director–General must raise the matter with the appropriate State Party.
Paragraph 65 of Part II states that if the uncertainties cannot be removed or the facts established are of a nature to suggest that obligations undertaken under the Convention have not been met, the Director–General shall inform the Executive Council without delay.
Paragraph 66 of Part II establishes the relationship between the general provisions applicable to all inspections contained in this Part and the specific provisions for each type of inspection contained in Parts III through XI of this Annex. Specifically, this paragraph states that the provisions of Part II of the Verification Annex shall apply to all inspections conducted pursuant to the Convention, except where the provisions of this Part differ from the provisions set forth for specific types of inspections in Parts III to XI of the Verification Annex, in which case the latter provisions shall take precedence.
Note that a specific provision takes precedence over a general provision whenever the specific provision differs from the general provision, not merely when they conflict. The purpose of this formulation is to ensure that any doubts over which provision governs will be settled in favor of the specific provision. This is particularly important in the case of challenge inspections, whose provisions in some cases differ significantly from the general rules for inspections.