Proposals for further consideration by the Friend of the Chair on Investigations

G. INVESTIGATIONS

(A) TYPES OF INVESTIGATIONS

1. Each State Party shall have the right to request an investigation which shall be carried out for the sole purpose of determining the facts relating to a specific concern about possible non-compliance with the Convention by any other State Party.

2. Each State Party shall be under the obligation to keep all requests within the scope of the Convention and refrain from unfounded or abusive requests.

3. The requesting State Party shall specify in each request which one of the following types of investigations it is seeking:

(a) Investigations to be conducted in geographic areas where the release of, or exposure of humans, animals or plants to microbial or other biological agents and/or toxins has given rise to a concern about possible non-compliance under Article I of the Convention or use of biological weapons, hereinafter referred to as “field investigations”;

(b) Investigations of alleged breaches of obligations under Article I of the Convention, to be conducted inside the perimeter around a particular facility at which there is a substantive basis for a concern that it is involved in activities prohibited by Article I of the Convention, hereinafter referred to as “facility investigations”.

(B) OUTBREAKS OF DISEASE

Exclusion of all outbreaks of disease which are due to natural causes

4. All outbreaks of disease which are due to natural causes do not pose a compliance concern under the Convention and shall not be a reason for an investigation of a non-compliance concern.

5. Nothing in this Protocol shall prejudice the right of a State Party to investigate, as per its national regulations, outbreaks of disease which occur on its territory or in any place under its jurisdiction or control, or if it so wishes, with the assistance of other State(s) and/or relevant international organizations.

Investigation of disease outbreaks relating to a specific concern about possible non-compliance with the Convention

6. If a State Party has a concern that an outbreak of disease is directly related to activities prohibited by the Convention, it shall have the right to request a field investigation to address the non-compliance concern. In accordance with the requirements of Annex D, section II, paragraphs 1 and 2, such request shall contain detailed evidence, and other information, and analysis substantiating why, in its view, it considers the outbreak of disease not to be naturally occurring and directly related to activities prohibited by the Convention. Information coming from the mass media or from private persons can not be considered as evidence on the basis of which the request shall be made. Relevant information from private persons who have direct knowledge of the alleged event(s) or of the results and/or details of any prior national or international investigation of the event(s) can be considered as evidence.

7. The Executive Council shall not [consider a request for] [authorize] a field investigation of an outbreak of disease, unless it determines that there is a basis for concern substantiated by detailed evidence, and other information, and analysis that the outbreak(s) of disease, is not naturally occurring and is directly related to activities prohibited by the Convention. The Executive Council, if it deems it appropriate for its [consideration] [authorization] of the above request, shall also request from the most relevant international organization(s) such as, but not limited to, the WHO, OIE, FAO, all available information in its/their possession, that may be relevant to the outbreak. When a State Party requests a field investigation of an outbreak(s) of disease on the territory or in any place under the jurisdiction or control of another State Party, the State Party where the investigation is proposed to occur shall have the right to provide evidence, and other information, and analysis that indicates that the outbreak of disease is naturally occurring or otherwise unrelated to activities prohibited by the Convention. If deemed appropriate by the Executive Council as a matter of procedure under Article IX, paragraph 30, other State(s) Party(ies) may also provide information relevant to whether the outbreak(s) of disease is naturally occurring and/or whether it is related to activities prohibited by the Convention. All of the evidence, and other information, and analysis submitted, shall be taken into account by the Executive Council in its consideration of the investigation request in accordance with the request procedures of paragraphs 13 to 27 of this section of Article III.

[Unusual outbreaks of disease

8. The diseases which are endemic in the region and present the expected epidemiological features shall not be considered as an unusual outbreak of disease. An outbreak of disease which appears to be unusual, shall be investigated by the affected State Party, as per guidelines set out in Annex D, section V, and concluded as soon as possible.]²⁹

9. A State Party has a right to request a field investigation of an alleged use of a biological weapon if it believes that a biological weapon was used against it on the territory under its jurisdiction and control.

(D) CONSULTATION, CLARIFICATION AND COOPERATION

10. States Parties [shall] [may], without prejudice to their right to request an investigation, and prior to the submission of any request for an investigation make use of and follow the relevant procedures set out in section E of this Article on consultation, clarification and cooperation in order to clarify and resolve satisfactorily any matter which may cause concern about possible non-compliance with the obligations of the Convention.

(E) INITIATION OF INVESTIGATIONS

11. An investigation may be requested to be conducted on the territory of a State Party, or in any other place under its jurisdiction or control, regardless of the form of ownership of the facility or the area subject to the investigation, in accordance with the provisions of this Protocol.

12. An investigation may also be requested to be conducted in any place on the territory of a non-State Party which is under its jurisdiction or control, if any State Party has a concern(s) that another State Party, which shall be identified in the request, is the alleged cause of the non-compliance concern. Upon receipt of such a request, the Director-General shall immediately contact the non-State Party concerned to seek:

(a) Its consent to the conduct of the investigation; and, subject to such consent

(b) Its agreement that the provisions of this Protocol governing the conduct of investigations shall apply to the investigation or, alternatively, its agreement to different procedures for the conduct of the investigation which the Director-General is satisfied would enable the facts relating to the specific concern about non-compliance raised in the request to be determined.

The Director-General shall inform the Executive Council and the requesting State Party of the outcome of such consultations as soon as possible.

13. Requests for investigations to be conducted in accordance with this Protocol shall be submitted in writing by the requesting State Party to the Executive Council and at the same time to the Director-General for processing in accordance with procedures as set out in paragraphs 19 to 27 of this section.

14. If, during the course of a field investigation, the investigation team has acquired information (as a result of the conduct of the activities specified in Annex D, section II, subsection D) indicating that a facility on the territory or in any other place under the jurisdiction or control of a State Party, is directly relevant to the alleged non-compliance concern that has been identified in the field investigation mandate, the investigation team leader shall provide a factual statement of the information and a factual description of how the information was obtained, to the receiving State Party. The receiving State Party may within 24 hours comment on the factual statement. The investigation team leader shall then submit the factual statement, description of how the information was obtained and the comments of the receiving State Party to the Executive Council through the Director-General.

15. Upon receipt of the information, the Executive Council shall provide the information to the receiving State Party, the requesting State Party, and, if appropriate, the State Party on whose territory or under whose jurisdiction or control the facility in question is located. Only these States Parties may submit a request for a facility investigation which involves this information. Such request shall be considered in accordance with the provisions contained in paragraphs 10 to 13 and 18 to 20 of this section.

16. The Executive Council's consideration of the information or any request for a facility investigation received from a State Party which received its information in accordance with paragraph 15 above and any decision made there-on shall be conducted in accordance with the provisions set out in paragraphs 19 to 27 of this section.

17. If the Executive Council decides that a facility investigation must be conducted, the investigation shall be conducted in accordance with the provisions for facility investigations set out in this section, and Annex D, sections I and III. The reports of the field and facility investigations shall be considered independently or simultaneously as determined by the Executive Council depending on the specific circumstances involved.

(F) INFORMATION TO BE SUBMITTED WITH A REQUEST FOR AN INVESTIGATION TO ADDRESS A CONCERN OF NON-COMPLIANCE WITH THE CONVENTION

18. A State Party requesting an investigation shall provide supporting evidence and other information required in accordance with the provisions set out in Annex D. All such evidence and other information shall be as precise as possible.

(G) FOLLOW-UP AFTER SUBMISSION OF AN INVESTIGATION REQUEST AND EXECUTIVE COUNCIL DECISION-MAKING

19. The Director-General, after receiving an investigation request, shall acknowledge receipt of it to the requesting State Party within two hours and shall provide a copy of the investigation request to the State Party sought to be investigated within six hours.

20. The Director-General shall ascertain within six hours after receipt of the investigation request whether the investigation request meets the requirements set out in paragraph 1 of section II of Annex D, for field investigations, and paragraph 1 of section III of Annex D, for facility investigations. If the Director-General is satisfied that the investigation request meets these requirements, he/she shall so inform the Executive Council immediately, and the State Party sought to be investigated and, if applicable, the potential host State Party/State, within six hours. If the Director-General determines that the investigation request does not meet these requirements, the Director-General shall so inform the Executive Council and the requesting State Party, and shall inform the requesting State Party of the reasons for this determination. The requesting State Party may submit a revised request, which shall be submitted and processed in the same way as an original request.

21. When the investigation request fulfils the requirements, the Director-General may begin with appropriate preparations for the investigation.

22. The Director-General, may upon receipt of an investigation request referring to an investigation area under the jurisdiction or control of a State Party, propose to the requesting State Party to immediately seek clarification from the State Party sought to be investigated in order to clarify and resolve the concern raised in the request. A State Party which receives a request for clarification pursuant to this paragraph shall provide the requesting State Party and the Director-General with explanations and with other relevant information as soon as possible but no later than 24 hours after receipt of the request for clarification without prejudice to its rights to provide additional relevant information during the entire process of the consideration of the investigation request by the Executive Council. Unless the requesting State Party considers the concern raised in the investigation request to be resolved and withdraws the request, the Executive Council shall take a decision on the request in accordance with paragraph 24.

23. The Executive Council shall begin its consideration of an investigation request immediately after it is informed by the Director-General, in accordance with paragraph 19, that the request meets the requirements and shall come to a conclusion on the request not later than 36 hours after it is so informed. Upon the conclusion of the Executive Council's consideration of an investigation request, the Director-General shall provide a copy of the request and the decision to all States Parties within 24 hours.

24. The investigation shall proceed [in the case of a request for a facility investigation] [if formally approved by at least a [two-thirds] [three-quarters] majority [present and voting] of the Executive Council] [unless the Executive Council decides by a three-quarters majority of [all] its members [present and voting] against carrying out the investigation] [and, in the case of a request for a field investigation, if formally approved by a simple majority of the Executive Council members present and voting].

25. The State Party sought to be investigated shall have the right to inform the Executive Council about the nature of the facility or area indicated in the investigation request, and provide information to indicate why, in its view, this facility is unrelated to the Convention.

26. In its examination of the investigation request, the Executive Council shall consider all the evidence and other information as well as analysis provided by the requesting State Party and the State Party sought to be investigated, as well as [any] [the] information resulting from [any] [the] prior consultation or clarification process and may also take into account other relevant information available to it. In doing so, the Executive Council may also decide, without prejudice to the time-line set out in paragraph 23, to seek more information from the requesting State Party, the State Party sought to be investigated and from other relevant international organizations. If such information cannot be provided by other relevant international organizations within the time-line set out in paragraph 23, the Director-General shall inform the Executive Council as appropriate. In the case of the Executive Council not approving the request for investigation, it may recommend other actions to resolve the matter such as bilateral or multilateral consultations to resolve the issue.

27. The requesting State Party as well as the State Party sought to be investigated, and, if applicable, in the case of a request for a field investigation, the State Party identified in the request as the alleged cause of the non-compliance concern, may participate in the Executive Council's consideration of an investigation request, but shall not have the right to vote on the request, whether or not such States Parties are members of the Executive Council.

28. The investigation mandate shall be made available to the receiving State Party immediately after the mandate is issued to the investigation team by the Director-General which shall be no later than 12 hours before the team's arrival at the point of entry.

(H) ACCESS AND MEASURES TO GUARD AGAINST ABUSE DURING THE CONDUCT OF INVESTIGATIONS

General principles

29. Investigations shall be conducted in accordance with the provisions of this Protocol.

30. The receiving State Party shall provide access to the investigation team and at the same time have the right to take such measures it deems necessary in accordance with the provisions of this section to protect its national security interests and/or to protect confidential information and data (including commercial proprietary information) during an investigation within the relevant time frames specified in Annex D in accordance with the following:

(a) All such access shall be in accordance with the provisions of this Protocol for the sole purpose of establishing facts relevant to the investigation mandate;

(b) The receiving State Party shall have the right to inform the investigation team about the areas, facilities or buildings which it considers sensitive and/or not related to the Convention;

(c) The nature and extent of access to a particular facility, place(s) or information within the areas specified in paragraphs 38 and 44 below, as set out in the mandate, shall be negotiated between the investigation team and the receiving State Party;

(d) The investigation team and the receiving State Party shall also negotiate the activities to be performed during the investigation; all activities shall be performed in accordance with the relevant provisions for these activities contained in Annex D, sections II and III;

(e) The receiving State Party shall have the right to make the final decision [on the nature and extent of such] [regarding any] access, taking into account its rights and obligations under this Protocol;

(f) In meeting the requirements to provide access, the receiving State Party shall be under the obligation to provide the greatest degree of access possible, taking into account any constitutional obligations it may have with regard to proprietary rights or searches and seizures;

(g) The receiving State Party shall make every reasonable effort to demonstrate its compliance with the Convention and, to this end, to enable the investigation team to fulfil its mandate.

31. The receiving State Party shall have the right to take measures, as it deems necessary to protect national security and/or to protect confidential information and data (including commercial proprietary information) in accordance with the provisions of this section and taking into account its obligations under this Protocol. Such measures may include but shall not be limited to the following:

(a) Making the final decision on the nature and extent of such access as provided for in paragraph 30, including to deny access to particularly sensitive places, or rooms not related to the investigation mandate, within the facility or area specified in paragraph 38;

(b) Removal of sensitive papers from office spaces and direct view;

(c) Shrouding of sensitive displays, stores, and equipment;

(d) Shrouding sensitive pieces of equipment, such as computer or electronic systems;

(e) Logging off of computer systems and turning off data indicating devices;

(f) Using random selective access techniques whereby the team is requested to select a given percentage or number of buildings of their choice to investigate; the same principle can apply to the interior and content of sensitive buildings or documents;

(g) Limiting the number of team members who have access to certain buildings, structures or places within the area specified in paragraphs 38 and 44;

(h) Limiting the viewing angle;

(i) Limiting the time investigation team members may spend in any area or building;

(j) At any time during the investigation, notifying the investigation team of the products and processes which involve national security and/or the protection of confidential information and data (including commercial proprietary information) and its rights to safeguard it. It may request that if a specific piece of information is released to the team, it should be accorded the most stringent protection measures in conformity with the confidentiality provisions.

32. If the receiving State Party provides less than full access to places, activities or information, it shall make every reasonable effort to provide alternative means to demonstrate compliance and to clarify the possible non-compliance concern that generated the investigation. The nature and extent of access, including any alternative means to demonstrate compliance, provided by the receiving State Party, and the extent to which this enabled the investigation team to fulfil its mandate, shall be recorded factually in the investigation report.

33. These provisions may not be invoked by the receiving State Party to conceal any evasion of its obligations not to engage in activities prohibited under the Convention.

34. In carrying out the investigation in accordance with the investigation mandate, the investigation team shall use only those methods necessary to provide sufficient relevant facts to clarify the concern about possible non-compliance with the provisions of the Convention, and shall refrain from activities not relevant thereto. It shall request, collect and/or document only such facts as are related to the investigation mandate, but shall neither seek nor document information which is clearly not related thereto, unless the receiving State Party expressly requests it to do so. Any material collected and subsequently found not to be relevant shall not be retained.

35. The investigation team shall conduct the investigation in the least intrusive manner possible consistent with the effective and timely implementation of its mandate. As a rule, it shall begin with the procedures it deems least intrusive and proceed to more intrusive procedures only as required to fulfil its mandate.

36. The investigation team shall take into consideration suggested modifications of the investigation plan and proposals which may be made by the receiving State Party, at any stage of the investigation, including the pre-investigation briefing, to ensure, inter alia, that sensitive equipment, information or places are protected. The investigation plan shall be handled in accordance with section II, paragraph 17, and section III, paragraph 30, of Annex D.

37. If the investigation team considers it necessary in order to fulfil its mandate, the investigation team shall have the right to request clarification in connection with ambiguities that may arise during an investigation. Such requests shall be made promptly to or through the representative of the receiving State Party. The representative shall make every reasonable effort to provide the investigation team with such clarification as may be necessary to remove the ambiguity.

Field investigations

38. The receiving State Party shall provide access within the investigation area within [48] hours after arrival at the point of entry in order to conduct activities pursuant to this Article and sections I and II of Annex D for the duration of the investigation as specified in Annex D, section II, paragraph 10.

39. The receiving State Party shall provide access to places within the investigation area external to buildings or other structures for the sole purpose of enabling the investigation team to conduct specific on-site activities identified in, and in accordance with, Annex D, section II, paragraphs 21 to 50. The extent and nature of access within a particular place(s) within the investigation area shall be negotiated between the investigation team and the receiving State Party in accordance with paragraphs 29 to 37 of this section. Such negotiated access in accordance with paragraphs 29 to 37 of this section, shall allow access to all humans, animals and/or plants that may have been affected by microbial or other biological agents or toxins directly related to the non-compliance concern being investigated.

40. The receiving State Party shall allow the investigation team to conduct only the following on-site activities identified in Annex D, section II, paragraphs 21 to 50 inside buildings, hospitals, other structures or places:

(a) Interviewing in accordance with Annex D, section II, paragraphs 21 to 29;

(b) Disease/intoxination-related examination in accordance with Annex D, section II, paragraphs 31 to 37;

(c) Collection and examination of background information and data in accordance with Annex D, section II, paragraphs 48 to 50;

(d) The analysis of samples collected in accordance with Annex D, section II, paragraph 33 and paragraphs 38 to 47.

41. The access provided for in these paragraphs shall not interfere or impede with any national measures taken to deal with the outbreak of disease.

42. The investigation team may, during the course of the investigation, request the receiving State Party to provide access to a facility, building or other structure as objects of investigation within the area(s) designated for investigation if access is required in order to fulfil the field investigation mandate. The investigation team shall together with its request for access provide the receiving State Party with information substantiating its request.

43. If the request of the investigation team is accepted, the rules governing the conduct of activities inside any facility, building or structure shall be those specified in this section and Annex D, section III, paragraphs 33 to 58. If the receiving State Party denies the investigation team's request, the investigation team may submit the request to the Director-General for submission to the Executive Council for consideration.

Facility investigations

44. The receiving State Party shall provide access within the requested and, if different, final perimeter not later than [108] hours after receipt of notification pursuant to Annex D, section III, paragraph 5 for the conduct of activities pursuant to this Article and sections I and III of Annex D for the duration of the investigation as specified in Annex D, section III, paragraph 8.

(I) FINAL REPORT

45. The preparation and handling of the final report shall be conducted in accordance with Annex D.

(J) REVIEW AND CONSIDERATION OF THE FINAL REPORT

46. The Executive Council shall, in accordance with its powers and functions as determined in Article IX, section C, review and consider the final report of the investigation team as soon as it is presented, and address [and decide on] any concern as to whether:

(a) Any non-compliance has occurred;

(b) The request had been in accordance with the provisions of this Protocol;

(c) The right to request an investigation has been abused.

47. With respect to any concerns raised under paragraph 46 (c), one or more of the following factors could be taken into account, where relevant:

(a) Information relating to the investigated site available prior to the investigation request (the authenticity and reliability of any information would need to be carefully assessed);

(b) Whether any of the information submitted as part of the investigation request was shown to be false;

(c) Information from and/or outcome or results of prior consultations/ clarifications relevant to the request, if applicable;

(d) Whether any investigation(s) (including any instituted under Article VI of the Convention) had previously been requested by the same State Party vis-à-vis the same investigated site, and if so, their number, frequency and outcome (including any follow-up action).

48. If the Executive Council reaches the conclusion, in keeping with its powers and functions, that there has been abuse, it shall consider and decide on, inter alia, whether:

(a) The requesting State Party shall bear some or all of the financial implications of the investigation, including those which have been borne by the receiving State Party;

(b) To suspend the right of the requesting State Party to request an investigation for a period of time, as determined by the Executive Council;

(c) To suspend the right of the requesting State Party to serve on the Executive Council for a period of time.

49. If the Executive Council reaches the conclusion, in keeping with its powers and functions, that further action may be necessary with regard to paragraph 46, it shall take the appropriate measures to redress the situation and to ensure compliance, including, if appropriate, specific recommendations to the Conference which shall consider the recommendations in accordance with Article IX and take the appropriate measures in accordance with Article V.

50. If the Executive Council reaches the conclusion, in keeping with its powers and functions, that further action may be necessary with regard to paragraph 46 (a), it shall distribute the investigation report to all States Parties before the next session of the Conference.

51. The receiving State Party, the requesting State Party and any other State Party that has been identified in an investigation request as the alleged cause of the non-compliance concern, shall have the right to participate in the review process in the Executive Council but shall have no vote.

52. The Executive Council shall inform the States Parties and the next session of the Conference of States Parties of the outcome of the process.