Annexes Confidentiality Annex

Confidential annex to COS (55) 51st meeting, 29 June 1955, DEFE 7/963, TNA. 

The Convention on the prohibition of the development, production, stockpiling, and use of chemical weapons and of their destruction (the Chemical Weapons Convention, CWC) was signed on January 13, 1993, and entered into force on April 29, 1997. The CWC includes 24 Articles, the Annex on Chemicals, the Annex on Implementation and Verification (so-called Verification Annex), and the Confidentiality Annex. The Verification Annex, which by the length occupies the majority of the CWC, is written in 11 parts. Article I lists the general obligations of the CWC as shown in Figure 1. 

In conformity with the relevant provisions in the Confidentiality Annex the inspected State Party shall have the right to take measures to protect sensitive installations and prevent disclosure of confidential information and data not related to chemical weapons. Such measures may include, inter alia . .. 

Only chemicals that are considered relevant within the scenario of the proficiency test are to be reported to avoid irrelevant chemicals being reported, in real off-site sample analysis, confidential information on the facility under inspection is revealed (e.g. information on an industrial production process that is not relevant to the implementation of the CWC). This requirement is a consequence of Paragraph C.17 of the Confidentiality Annex of the CWC, l1. The reporting of irrelevant chemicals is penalized with immediate failure of the test see Section 6.1. 

There is also a Confidentiality Annex that details how scientific or trade secrets should be protected. However, even among those states that have signed and ratified the CWC, considerable concern remains over the protection of proprietary information, as well as the fear that some countries might abuse the inspection process by harassing one another. 

In conducting verification activities, the Technical Secretariat shall avoid undue intrusion into the State Party s chemical activities for purposes not prohibited under this Convention and, in particular, abide by the provisions set forth in the Annex on the Protection of Confidential Information (hereinafter referred to as Confidentiality Annex ). 

It shall treat such information and data exclusively in connection with its rights and obligations under this Convention and in accordance with the provisions set forth in the Confidentiality Annex. 

In addition to agreed guidelines, other relevant provisions of this Annex and the Confidentiality Annex, paragraphs 24 to 30 below shall apply. 

Recalling that the Preparatory Commission developed a Draft OPCW Policy on Confidentiality (OPOC) that includes the above mentioned issues as well as rules governing the composition and operating procedures of the Commission for the Settlement of Disputes Related to Confidentiality (hereinafter the Confidentiality Commission ) as required by paragraph 23 the Confidentiality Annex to the Chemical Weapons Convention (hereinafter the the Confidentiality Annex ), in a combined manner ... 

The revised version of the OPCW Policy on Confidentiality annexed hereto contains three sets of changes - those that were made in C-l/DEC.13/Corr.l, removing references to the draft OPOC submitted by the Preparatory Commission, those that were made in C-II/DEC.14 paragraph 3, amending Rule 1.4 of Part IX.2 of the Policy (Rules Governing the Confidentiality Commission) and those from C-10/DEC.9 which contained amendments to the OPCW Policy on Confidentiality [footnote in original]. 

Paragraph 6 of Article VII of the Convention establishes the obligation on each State Party to treat as confidential and afford special handling to information and data that it receives in confidence from the Organisation in connection with the implementation of this Convention. It shall treat such information and data exclusively in connection with its rights and obligations under this Convention and in accordance with the provisions set forth in the Confidentiality Annex. ... 

These basic requirements are elaborated in a number of other provisions of the Convention, especially in the Confidentiality Annex and in the provisions detailing verification procedures (e.g. paragraph 10 of Article VI paragraphs 56 and 62, Part II of the Verification Annex and paragraph 48, Part X of the Verification Armex). From this basis, the fundamental elements of the Organisation s Policy on Confidentiality are ... 

A basic principle on confidentiality, set down in subparagraph 2(c) of the Confidentiality Annex, is that no information obtained by the Organisation in coimection with the implementation of the Convention shall be published or otherwise released, except as specifically provided for. 

The Director-General is specifically tasked with primary responsibility for the protection of confidential information. The Director-General must establish the regime for handling confidential information within the Secretariat in accordance with the guidelines laid down in the Convention including the Confidentiality Annex and this Policy. 

For instance in accordance with paragraph 46 of Part X of the Verification Annex and with paragraph 14 of the Confidentiality Annex [footnote in original]. 

There is a distinction between a classification category (which is based on the sensitivity of information) and the scope of dissemination of information (which is based, for instance, on the subject matter, the need-to-know prineiple, and the particular purpose for which the information is to be used). Level of elassifieation will not prevent the dissemination of information as specifically required by the Convention, including under subparagraph 2(b) of the Confidentiality Annex. 

The Confidentiality Annex (CA) sets out the two principles governing access to and the dissemination of confidential information within the Organisation ... 

Access to confidential information shall normally be granted both on a case-by-case basis and in accordance with the determination of the functional need to know. There is, however, an unconditional requirement for access to certain information by States Parties in accordance with subparagraph 2(b) of the Confidentiality Annex, and this and related provisions should be viewed as establishing an unquestionable need to know for each State Party, so as to be ensured of the continued compliance of other States Parties with the Convention. 

There are various circumstances when the Secretariat will need to determine authorised scope of access and consequently to disseminate eonhdential information to States Parties. In aU cases, the governing principle is that estabhshed in subparagraph 2(b) of the Confidentiality Annex, and procedures shall be estabhshed to ensure that the requirements of this provision are met. Henee, data required by States Parties to be assured of the continued compliance with this Convention by other States Parties shall be routinely provided to them. In particular, information management and clearance procedures shall be followed to ensure that the information whieh must be provided to all States Parties, in accordance with subparagraph 2(b) of the Confidentiality Annex, is duly provided without further need for consultation and approval within the Secretariat. 

Information to be provided to States Parties in accordance with subparagraph 2(b) of the Confidentiality Annex, but which is confidential, shall be copied and disseminated routinely in accordance with the requests of States Parties and in accordance with an administrative directive issued by the Director-General. In the case of OPCW PROTECTED and OPCW HIGHLY PROTECTED information, a record should be kept of the number of copies taken and the recipient(s) of each of the copies. 

Set out in Part III of this Policy, under the heading Scope of information . Confidentiality Annex, paragraph 13. 

The Director-General shall establish and supervise the implementation and auditing of the regime for the protection and handling of confidential information within the Organisation in accordance with the principles set out in the Confidentiality Annex and this Pohcy. To this end, the Director-General shall issue and supervise the implementation of administrative directives required by this Policy. 

On the basis of the provisions of the Confidentiality Annex (paragraph 19), this Part of the Policy outlines the procedure for investigations by the Director-General in relation to breaches and alleged breaches of confidentiality and violations of related obhgations to protect confidential information. 

As required in the terms of the Confidentiality Annex, the Director-General shall promptly initiate an investigation ... 

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