The Protection of Confidential Compliance Information:
A Prerequisite for Effective Verification of Compliance with the NWC

"It seems likely that the viability of verifiable nuclear disarmament in a world with nuclear energy will turn on the degree of surveillance, accounting and control of nuclear facilities that those affected are willing to tolerate." Security and Survival, Section 3-24.

"A guiding principle should be the search for a regime sufficiently restrictive to ensure the highest level of confidence in compliance, but also sufficiently permissive to allow states to join without jeopardising their legitimate security interests and commercial activities." Ibid., Section 4-2.

Effective verification of nuclear weapons disarmament and non-proliferation will require international scrutiny of both a state’s nuclear weapons installations and its nuclear energy facilities. This may entail access to sensitive compliance-relevant information and data which, if misused or publicly disclosed, may damage State security or commercial property. In the experience of the Chemical Weapons Convention (CWC), which entered into force in April 1997, states will only open their military and industrial facilities to scrutiny if assured that the verification body is held to strict rules regarding the handling and dissemination of sensitive compliance information and that breaches of confidentiality will be dealt with appropriately. Indeed the CWC, which provides for highly intrusive onsite inspections as a means of verification of compliance, would not have received such widespread support, in particular from key chemical weapons possessors and chemical industry, were it not for the inclusion of such assurances in the treaty.

Although the Model NWC contains several provisions referring to the protection of confidential compliance information, these will have to be reinforced by a more detailed framework, such as that of the CWC’s Confidentiality Annex, defining the respective rights and obligations of the verification body (i.e. the Agency and, in particular, its Technical Secretariat) and of States Parties in relation to access, handling, and dissemination of sensitive compliance information. This framework could also include references to clearance procedures for Agency staff (based on the "need-to-know" principle), a classification system, and measures and procedures to deal with breaches of confidentiality.

While a confidentiality framework should serve to assure states of the Agency’s ability to protect their confidential compliance information, it must also remind them that the Agency is entitled to access and extract relevant information, albeit confidential, where necessary for demonstration of compliance. The right of access to relevant information is critical to the verification regime’s ability to build confidence in compliance. While this may seem self-evident, in the implementation of the CWC some states have taken the position that confidential compliance information can under no circumstances exit their territory, and have grounded their view on ambiguously worded provisions of the CWC and decisions of the OPCW’s policy making organs. The Model NWC’s confidentiality provisions, notably paragraph 15 of Article V, should be redrafted in such a way as to remove any doubts in this regard. At any rate, it must be made clear that states parties may take measures to protect confidentiality provided that they fulfil their obligations to demonstrate compliance in accordance with the Convention (see paragraph 13 of the CWC’s Confidentiality Annex).

Confidentiality is not meant to affect the substance of verification, but only its form, e.g. by restricting the number of persons who may have access to information to those with a need to know and by establishing special procedures on the handling, storage and dissemination of confidential information. Moreover, confidentiality is only meant to affect the external transparency of the verification regime to the extent that it renders the information off limits to the public. Internal transparency is not substantially affected by confidentiality (though it may be procedurally affected) to the extent that states parties and the verification body’s policy making organs have a standing entitlement to that information, which they require to be assured of the continued compliance of each state party with the treaty. Accordingly, the MNWC (and in particular paragraphs 56 and 57 of Article VIII) should make clear that while confidential information shall not be included in the Registry, it shall be made available to States Parties for compliance determination in accordance with the Convention.

Kathleen Lawand

Former Legal Officer with the Organisation for the Prohibition of Chemical Weapons

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