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RS 0.192.110.951.5 Agreement of 20 July 2005 between the Swiss Federal Council and the Organization for the Prohibition of Chemical Weapons (OPCW) concerning the privileges and immunities of the OPCW

Original Language Title: RS 0.192.110.951.5 Accord du 20 juillet 2005 entre le Conseil fédéral suisse et l’Organisation pour l’interdiction des armes chimiques (OIAC) relatif aux privilèges et immunités de l’OIAC

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0.192.110.951.5

Original text

Agreement between the Swiss Federal Council and the Organization for the Prohibition of Chemical Weapons (OPCW) concerning the privileges and immunities of the OPCW

Concluded on 20 July 2005

Entered into force on 22 November 2005

(State 14 February 2006)

The Swiss Federal Council,

On one hand,

Organization for the Prohibition of Chemical Weapons (OPCW),

On the other hand,

Whereas s. 48 of the art. VIII of the Convention of 13 January 1993 on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction 1 Provides that the Organization shall enjoy, in the territory and in any other place under the jurisdiction or control of a State Party, in this case Switzerland, the legal capacity and privileges and immunities necessary for it to exercise Its functions;

Whereas s. 49 of Art. VIII of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction provides that the representatives of the States Parties and their alternates and advisers shall Appointed to the Executive Council and their alternates and advisers, the Director General and the staff of the Organization shall enjoy the privileges and immunities necessary for them to exercise their functions independently Within the framework of the Organization;

Whereas notwithstanding s. 48 and 49 of the Art. VIII of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, the privileges and immunities enjoyed by the Director General and the staff of the Secretariat in The framework for the conduct of audit activities is those set out in Part II (B) of the Audit Annex;

Whereas s. 50 of the art. VIII of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction provides that the aforementioned legal capacity and privileges and immunities are defined in Agreements between the Organization and the States Parties;

The Swiss Federal Council and the Organisation for the Prohibition of Chemical Weapons,

Agreed to the following:

Art. 1 Definitions

For the purposes of this Agreement:

(a)
The term "Convention" means the Convention of 13 January 1993 on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction;
(b)
"OPCW" means the Organization for the Prohibition of Chemical Weapons created under subs. 1 of the art. VIII of the Convention;
(c)
"Director General" means the Director General referred to in subs. 41 of the art. VIII of the Convention or, in his absence, the Acting Director General;
(d)
The term "OPCW officials" means the Director General and all staff members of the OPCW Secretariat;
(e)
"State Party" means Switzerland, the State Party to this Agreement;
(f)
"States Parties" means the States Parties to the Convention;
(g)
The term "representatives of States Parties" means the heads of accredited delegations of States Parties to the Conference of the States Parties and/or the Executive Board or delegates to other meetings of the OPCW;
(h)
"Experts" means persons who, on an individual basis, carry out missions authorized by the OPCW, participate in the work of one of its organs or provide, in any way, advice to the OPCW upon request;
(i)
"Qualified experts" means persons whose knowledge in a particular field is necessary in the course of an inspection and whose name appears on a list established by the Director General in accordance with subs. 7 of Part 11 (B) of the Audit Annex;
(j)
The term "meetings convened by the OPCW" means meetings of the organs or subsidiary bodies of the OPCW or conferences and other international meetings organized by the OPCW;
(k)
The term "property" means all assets, assets and funds owned or managed by the OPCW in the performance of its functions under the Convention, as well as all OPCW income;
(l)
The term "OPCW Archives" means all records, correspondence, documents, manuscripts, computerized data and information materials, photographs, film, video recordings and sound recordings belonging to The OPCW or its officials in the performance of their official duties as well as any other material for which the Director General and Switzerland may agree that it is part of the archives of the OPCW;
(m)
The expression "OPCW premises" means the buildings or parts of buildings and grounds, if any, used for the purposes of the OPCW, including those referred to in para. B at par. 11 of the second part of the Audit Annex;
(n)
"Secretariat staff" means all staff appointed by the Director General under the Rules and the Staff Regulations of the OPCW.
Art. 2 Legal personality

The OPCW has international legal personality and legal capacity in Switzerland. In particular, it has the capacity to:

(a)
Contract;
(b)
Acquire and dispose of movable and immovable property;
(c)
Legal proceedings.
Art. 3 Privileges and immunities of the OPCW

1. The OPCW and its property, wherever located and whatever the holder thereof, shall enjoy immunity from jurisdiction, except to the extent that the OPCW has expressly waived it in a particular case. It is understood, however, that the waiver cannot be extended to implementing measures.

2. The OPCW premises shall be inviolable. Its assets, wherever they are located and whatever the holder, are free of search, requisition, confiscation or expropriation or any other form of executive, administrative, judicial or legislative constraint.

3. The archives of the OPCW are inviolable, wherever they are located.

4. Without being bound by any financial control, regulation or moratorium:

(a)
The OPCW may hold funds, gold or currency of any kind and have accounts in any currency;
(b)
The OPCW may freely transfer its funds, securities, gold and currency between Switzerland and any other country or within the territory of Switzerland and convert any currency held by it into any other currency.

5. In exercising its rights under s. 4 of this Article, the OPCW shall take due account of any observations submitted to it by the Government of Switzerland in so far as it considers that it can act on it without prejudice to its own interests.

6. The OPCW and its assets are:

(a)
Exempt from any federal, cantonal or communal direct tax; that being, in respect of immovable property, this exemption applies only to immovable property owned by the OPCW and occupied by its offices and to the income Generate; it is understood, however, that the OPCW will not ask for exemption from taxes which, in reality, are merely remuneration for public utilities;
(b)
Exempt from all customs duties and prohibitions and restrictions on imports or exports in respect of objects imported or exported by it for its official use; it is understood, however, that duty-free items On the Swiss territory will not be sold there, unless it is under conditions approved by Switzerland;
(c)
Exempt from all customs duties and prohibitions and restrictions on imports or exports in respect of its publications.

7. Although the OPCW does not, as a general rule, claim exemption from value added tax, Switzerland, in accordance with the status granted to international organizations in Switzerland, makes the appropriate administrative arrangements for the purpose of Remission or repayment of the amount of fees levied on the acquisition or provision of services, which have been paid by the OPCW in the performance of its official duties.

Art. 4 Facilities and immunities for communications and publications

1. The OPCW shall enjoy, for its official communications, on Swiss territory and to the extent consistent with the international conventions, regulations and arrangements to which Switzerland is a party, at least as favourable as The treatment accorded by the Government of Switzerland to any other government, including the diplomatic mission of the Government, in respect of priorities, tariffs and taxes on mail and telecommunications and in the field of press rates for the Media information.

2. Formal correspondence and other official communications from the OPCW cannot be censored.

The OPCW has the right to use codes and to ship and receive correspondence and other official communications by sealed letters or suitcases which enjoy the same privileges and immunities as couriers and bags Diplomatic.

This paragraph shall in no way be interpreted as prohibiting the adoption of appropriate security measures, to be determined by agreement between Switzerland and the OPCW.

Switzerland acknowledges the right of the OPCW to publish and disseminate information freely on Swiss territory for the purposes specified in the Convention.

4. All official communications addressed to or from the OPCW by any means or form shall be inviolable. This inviolability extends, without limitation, to publications, photographs, cinematographic films, videos, films, sound recordings and software.

Art. 5 Representatives of States Parties

Irrespective of the other privileges and immunities to which they may be entitled, representatives of the States Parties to the meetings convened by the OPCW, as well as their alternates, advisers, technical experts and secretaries of Their delegations shall enjoy, during the course of their duties and in the course of their movements to or from the place of the meeting, the following privileges and immunities:

(a)
Immunity from arrest or detention;
(b)
Immunity from jurisdiction for their words, writings and all acts performed by them in the performance of their official duties; this immunity shall remain even if the persons concerned have ceased to carry out their duties;
(c)
Inviolability of all official documents, documents and materials;
(d)
The right to use codes and to ship or receive papers, correspondence or official materials by courier or in sealed bags;
(e)
Exemption, for themselves and their spouses, of all restrictive measures relating to immigration, of all formalities for the registration of foreigners and of all national service obligations when they are in Switzerland or are in Transit in the performance of their duties;
(f)
Same facilities for currency or exchange restrictions as those accorded to representatives of foreign governments on temporary official missions;
(g)
Same immunities and facilities in respect of their personal baggage as those accorded to members of diplomatic missions of comparable rank.

2. Where the impact of any tax is subject to the residence of the taxable person, the periods during which the persons referred to in subs. 1 of this Article shall be situated on Swiss territory for the performance of their duties shall not be regarded as periods of residence. This provision does not apply to persons who are permanent residents of Switzerland and carry out their duties in Switzerland.

3. Privileges and immunities are granted to persons referred to in s. 1 of this article not for their personal benefit but to ensure that they can carry out their duties in the framework of the OPCW in complete independence. Therefore, all persons enjoying such privileges and immunities have the duty to observe in all other respects Swiss laws and regulations.

4. The provisions of s. 1 and 2 of this Article shall not apply to Swiss nationals.

Art. 6 OPCW officials

During the course of the audit activities, the Director-General and officials of the Secretariat, including qualified experts during investigations into allegations of the use of chemical weapons in s. 7 and 8 of the eleventh part of the Annex on Verification, shall enjoy, in accordance with para. 51 of art. VIII of the Convention, the privileges and immunities referred to in Part II (B) of the Annex on the Verification of the Convention or, when transiting through the territory of a non-inspected State Party, the privileges and immunities referred to in s. 12 of Part Two of the said Annex.

2. For the purposes of other activities related to the object and purpose of the Convention, OPCW officials shall:

(a)
Enjoy immunity from arrest or detention and seizure of their personal baggage;
(b)
Enjoy immunity from jurisdiction for their words, writings and all acts performed by them in the performance of their official duties; this immunity remains even if the persons concerned have ceased to carry out official duties For the OPCW;
(c)
Enjoy the inviolability of all official documents, documents and materials, subject to the provisions of the Convention;
(d)
Shall enjoy exemption from taxes on salaries and emoluments paid to them by the OPCW; this exemption shall apply to Swiss nationals and permanent residents of Switzerland, provided that the Organization imposes a tax Internal;
(e)
Are not subject, no more than their spouses, to restrictive measures relating to immigration and the registration of foreigners;
(f)
Enjoy in times of international crisis, as well as their spouses, the same repatriation facilities as members of diplomatic missions of comparable rank;
(g)
Enjoy, as regards exchange facilities, the same privileges as members of diplomatic missions of comparable rank.

3. Officials of the OPCW shall be exempt from any obligation relating to the national service. However, this exemption is, in the case of Swiss nationals, limited to those of the officials of the OPCW who, by virtue of their functions, have been named by name on a list established by the Director-General of the OPCW and approved by the Switzerland. In the event of the requisition of other officials of the OPCW, Switzerland shall grant, at the request of the OPCW, exemptions which may be necessary in order to avoid the interruption of an essential service.

4. In addition to the privileges and immunities provided for in s. 1 to 3 of this Article, the Director-General of the OPCW, in so far as it concerns his spouse, shall enjoy the privileges, immunities, exemptions and facilities accorded, in accordance with international law, to diplomatic agents and to Their spouses. The same privileges, immunities, exemptions and facilities shall be granted to any officer of the OPCW acting on behalf of the Director General.

5. Privileges and immunities are granted to OPCW officials in the interest of the Organization and not for their personal benefit. All persons enjoying such privileges and immunities are required to observe Swiss laws and regulations in all other respects. The OPCW has the right and the duty to waive the immunity granted to one of its officials in all cases where, in its opinion, immunity would impede the course of justice and may be waived without prejudice to the interests of the OPCW.

6. The OPCW shall cooperate at all times with the competent Swiss authorities in order to facilitate the proper administration of justice, ensure compliance with police regulations and prevent any abuse to which privileges may be granted, Immunities and facilities listed in this Article.

Art. 7 Experts

(1) Experts shall enjoy the following privileges and immunities to the extent necessary for the effective exercise of their functions, as well as during their movements in order to carry out such functions:

(a)
Immunity from arrest or detention and seizure of their personal baggage;
(b)
Immunity from jurisdiction for their words, writings and all acts performed by them in the performance of their official duties; this immunity shall remain even if the persons concerned have ceased to carry out official duties for the OPCW;
(c)
Inviolability of all official documents, documents and materials;
(d)
The right, in their communications with the OPCW, to use codes and receive papers or correspondence by couriers or sealed bags;
(e)
Same facilities, as far as monetary and exchange restrictions are concerned, than those granted to representatives of foreign governments on temporary official missions;
(f)
Same immunities and facilities, as far as their personal baggage is concerned, than those granted to members of diplomatic missions of comparable rank.

2. Privileges and immunities are granted to OPCW experts in the interest of the Organization and not for their personal benefit. All persons enjoying such privileges and immunities have the duty to observe in all other respects Swiss laws and regulations. The OPCW has the right and the duty to waive the immunity granted to one of its experts in all cases where, in its opinion, immunity would impede the course of justice and may be waived without prejudice to the interests of the OPCW.

Art. 8 Privilege Abuse

If Switzerland considers that there is an abuse of a privilege or immunity granted under this Agreement, consultations shall take place between Switzerland and the OPCW in order to determine whether such abuse has occurred and, if so, to try to prevent such abuse Repetition. If the consultations do not result in a satisfactory outcome for Switzerland and the OPCW, the question of whether there has been an abuse of a privilege or immunity is settled in accordance with the procedure laid down in Art. 10.

2. Persons belonging to one of the categories referred to in s. 6 and 7 of this Agreement are not required by the territorial authorities to leave the territory of Switzerland because of their activities in the course of their official duties. However, in cases where such a person would be abusing a privilege in the course of activities unrelated to his or her official duties, that person may be compelled by the Government of Switzerland to leave the territory, provided that the Expulsion decision by the territorial authorities, with the approval of the Swiss Minister for Foreign Affairs. Such approval shall be given after consultation with the Director-General of the OPCW. If an expulsion procedure is instituted against the said person, the Director-General of the OPCW shall have the right to intervene in such proceedings in the name of the person against whom the proceedings are instituted.

Art. Travel documents and visas

Switzerland shall recognise and accept as valid the United Nations laissez-passer issued to the officials of the OPCW, in accordance with the special arrangements applicable to it, in order to carry out their tasks in relation to the Convention. The Director-General shall inform Switzerland of the relevant arrangements for the OPCW.

2. Switzerland shall take all measures necessary to facilitate entry and residence in its territory of persons belonging to any of the categories referred to in Art. 5 to 7 of this Agreement, irrespective of their nationality and shall not impede their exit from its territory. It shall ensure that their movements to or from the place where they are required to carry out their official duties do not suffer any hindrance and grant them the necessary protection when they are in transit.

3. Where applicable, applications for visas and transit visas from persons belonging to any of the categories referred to in Art. 5 to 7 of this Agreement, accompanied by a certificate certifying that such persons travel in their official capacity, shall be dealt with as soon as possible in order to enable the persons concerned to effectively exercise their Functions. In addition, facilities are granted to those persons so that they can move quickly.

4. The Director General, Deputy Director General (s) and other OPCW officials travelling in their official capacity shall enjoy the same travel facilities as members of diplomatic missions of comparable rank.

5. For the conduct of verification activities, visas shall be issued in accordance with s. 10 of Part Two (B) of the Annex on the Verification of the Convention.

Art. 10 Dispute Settlement

1. The OPCW provides for appropriate methods of regulation:

(a)
Disputes arising from contracts or other private-law disputes to which the OPCW is a party;
(b)
Disputes involving an OPCW official or an expert who enjoys immunity as a result of his or her official duties, unless such immunity has been waived in accordance with s. 5 of the art. 6 or at par. 2 of the art. 7 of this Agreement.

2. At the request of either of the parties, any dispute concerning the interpretation or application of this Agreement which is not settled amicably shall be submitted for final decision to a tribunal composed of three arbitrators. Each party shall appoint an arbitrator. The two arbitrators thus appointed jointly appoint the third-party arbitrator, who presides over the tribunal.

(3) If one of the parties does not appoint an arbitrator and has not made such arrangements within two months of the request of the other party to make such a designation, the latter may request the President of the International Court of Justice to do so.

4. In the absence of an agreement between the two arbitrators on the choice of the third party arbitrator within two months of their appointment, either party may request the President of the International Court of Justice to proceed with the designation.

The procedure of the court shall be in accordance with the Optional Arbitration Rules for International Organizations and the States of the Permanent Court of Arbitration, applicable on the date of entry into force of this Agreement.

6. The court shall act by a majority of the votes. Its decision is final and binding on the parties to the dispute.

Art. 11 Interpretation

The provisions of this Agreement shall be interpreted in the light of the functions entrusted to the OPCW under the Convention.

2. The provisions of this Agreement shall not limit or prejudice in any way the privileges and immunities accorded to members of inspection teams in accordance with Part II (B) of the Annex on the Verification of the Convention, or Privileges and immunities granted to the Director General and to officials of the Secretariat of the OPCW, in accordance with para. 51 of art. VIII of the Convention. The provisions of this Agreement shall not terminate or derogate from any of the provisions of the Convention or any of the rights and obligations that the OPCW may have, acquire or otherwise assume.

Art. 12 Final provisions

(1) This Agreement shall enter into force on the date on which Switzerland deposits an instrument of ratification with the Director General. It is understood that Switzerland, when it disposes of its instrument of ratification, will be able, in accordance with its own legislation, to give effect to the provisions of this Agreement.

2. This Agreement shall remain in force for as long as Switzerland remains a party to the Convention.

3. The OPCW and Switzerland may conclude any additional agreements they deem necessary.

4. The OPCW or Switzerland may request the opening of consultations concerning the amendment of this Agreement. Any such modification shall be agreed upon by mutual consent in an agreement between the OPCW and Switzerland.

Done at The Hague in duplicate on 20 July 2005, in English and in French, each language being equally authentic.


For the

Swiss Federal Council:

For the Organization

For the prohibition of chemical weapons:

Wilhelm Schmid

Rogelio Pfirter


RO 2006 453



State 11. July 2006