Confidentiality State Party

Confidentiality concerns, in particular, in relation to inspections of industry facilities and in relation to activities not prohibited by the Convention have led to several measures aimed at protecting sensitive information. In order to allow the inspected State Party to retain all data produced by the GC/MS, the equipment is operated from a removable hard disk, which may be retained on site at the end of the inspection. Another measure has been the design of dual mode software for the GC/MS by modifying the operating software of the instrument to offer operation in so-called open or blinded mode as explained in the following. 

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 . .. 

Traditional GC/MS analysis and data processing could reveal the identity of chemicals that are not related to the purpose of the inspection. Under certain circumstances this may not be acceptable for the inspected State Party (ISP) because the information may be considered as confidential for business or for national security reasons. 

Thus in a challenge inspection, although access within the requested perimeter itself is assured, the inspected State Party is allowed to take various measures to protect sensitive installations and confidential information in terms of both the timeline for giving access and the intrnsive-ness of such access. 

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 ). 

Each State Party shall treat as confidential and afford special handling to information and data that it receives in confidence from the Organization in coimection with the implementation of this Convention. 

Not later than 10 days after the inspection, the inspectors shall prepare a faetual, final report on the activities conducted by them and on their findings. It shall only contain facts relevant to compliance with this Convention, as provided for under the inspection mandate. The report shall also provide information as to the manner in which the State Party inspected cooperated with the inspection team. Differing observations made by inspectors may be attached to the report. The report shall be kept confidential. 

The inspection team shall, not later than 72 hours after its return to its primary work location, submit a preliminary inspection report, having taken into account, inter alia, paragraph 17 of the Confidentiality Aimex, to the Director-General. The Director-General shall promptly transmit the preliminary inspection report to the requesting State Party, the inspected State Party and to the Executive Council. 

Each State Party shall treat information which it receives from the Organization in accordance with the level of confidentiality established for that information. Upon request, a State Party shall provide details on the handling of information provided to it by the Organization. 

Each position in the Technical Secretariat shall be governed by a formal position description that specifies the scope of access to confidential information, if any, needed in that position. The Director-General, the inspectors and the other members of the staff shall not disclose even after termination of their functions to any unauthorized persons any confidential information coming to their knowledge in the performance of their official duties. They shall not communicate to any State, organization or person outside the Technical Secretariat any information to which they have access in connection with their activities in relation to any State Party. 

States Parties may take such measures as they deem necessary to protect confidentiality, provided that they fulfil their obligations to demonstrate compliance in accordance with the relevant Articles and the Verification Annex. When receiving an inspection, the State Party may indicate to the inspection team the equipment, documentation or areas that it considers sensitive and not related to the purpose of the inspection. 

The report to be prepared after each inspection shall only contain facts relevant to compliance with this Convention. The report shall be handled in accordance with the regulations established by the Organization governing the handling of confidential information. If necessary, the information contained in the report shall be processed into less sensitive forms before it is transmitted outside the Technical Secretariat and the inspected State Party. 

The Director-General shall impose appropriate punitive and disciplinary measures on staff members who have violated their obligations to protect confidential information. In cases of serious breaches, the immunity from jurisdiction may be waived by the Director-General. States Parties shall, to the extent possible, cooperate and support the Director-General in... 

For breaches involving both a State Party and the Organization, a Commission for the settlement of disputes related to confidentiality , set up as a subsidiary organ of the Conference, shall consider the case. This Commission shall be appointed by the Conference. Rules governing its composition and operating procedures shall be adopted by the Conference at its first session. 

Recognising the need to continue work on this issue, in particular on the issue of clarification of transfer discrepancies, and on the need for the Secretariat to continue to explore how it can best exchange confidential information with States Parties in aecordance with the confidentiality procedures of the Convention ... 

Measures pursuant to subparagraph 1.1 above will be taken in accordance with methods agreed between the inspection team leader and the representative of the inspected State Party, on a case by case basis, consistent with State Party or local safety regulations, the OPCW Health and Safety Policy, related OPCW regulations and operating procedures, and/or the OPCW Confidentiality Policy. 

In accordance with the provisions of the Convention and with the OPCW Policy on Confidentiality, Section VI, subsection 3.4.3, paragraphs 3, 4 and 5, the following technical measures relate to situations where, after the selection of information relevant to the purpose of the inspection by the inspection team for inclusion in its preliminary findings, information not relevant to the purpose of the inspection has to be removed before the inspection team leaves the site. Any fact of application of these technical measures will be recorded in the preliminary findings. It should be kept in mind that in many cases the inspection team may request the inspected State Party to dispose of detachable or consumable parts of equipment when contaminated or used. 

A policy for confidential information is essential to the work of the Organisation because of the intrusive verification measures which are aimed at promoting confidence in compliance with the Convention while respecting States Parties legitimate concerns about the possible disclosure of sensitive information. Credible verification entails receptiveness on the part of States Parties and a level of intrusiveness in verification activities. The need for disclosure of appropriate information to demonstrate compliance with the Convention should be matched by credible reassurances for States Parties that proper measures are taken to prevent disclosure of information not relevant to the Convention and that any confidential information, once disclosed, will be appropriately protected. 

Consequently, in defining States Parties rights and obligations, the Convention embodies a balance between that disclosure necessary to enhance confidence in compliance with the Convention, and the prevention of disclosure of information not relevant to the Convention, in order to protect national security and proprietary rights, taking into account constitutional obligations. These two objectives are not necessarily in conflict on the contrary, a credible and effective process of verification can be achieved which actively and integrally protects confidentiality. The Convention text provides practical assurances that all confidential information will be appropriately protected and that verification procedures will seek to prevent the disclosure of information not related to verification of compliance with the Convention. 

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. ... 

This Part sets out guidelines for developing a practical understanding of the scope of the terms information , confidential information and confidentiality . The Convention sets out no definitive account of how these terms are to be applied, and it is clear that they are to be determined in an operational context consistent with the implementation of the Organisation s and States Parties various responsibilities imder the Convention. 

In determining whether the information it is providing to the Organisation contains confidential information, a State Party could also consider the above factors. The designation of information as confidential shall not imdermine the obligation for a State Party to demonstrate compliance with the Convention and shall not be used by a State Party to conceal non-compliance. Furthermore, a State Party cannot prevent the dissemination of information which in accordance with the Convention shall be transmitted in a specified manner to States Parties upon request or routinely. 

The OPC W will receive a great deal of confidential information from States Parties and... 

States Parties must treat information reeeived from the Organisation in aeeordanee with its level of sensitivity as expressed in its elassrfieation eategory. The way this obhgation is carried out will naturally differ between States Parties, but as a rule this information should be given at least the same level of protection as that afforded to information with comparable national classification or comparable confidentiality under national legal systems. States Parties shall establish or adapt suitable means of handling and protection of OPCW confidential information in a manner consistent with the principles set out in Part VI of this Policy. 

In safeguarding confidentiality of information, States Parties must adhere to the essential obligation to demonstrate compliance with the Convention in accordance with its verification provisions. 

The level of protection afforded to confidential information shall be linked to the level of sensitivity as indicated by its classification category. Each State Party and the Organisation shall protect OPCW classified information originating both from within the Organisation and from States Parties in accordance with its level of sensitivity as expressed by its classification category. 

---