Verification of Facts

Michael BotheAsk

Content type: Encyclopedia Product: Max Planck

entries Encyclopedias of International
Article last updated: May Law [MPIL]
2011 Module: Max Planck
Encyclopedia of Public
International Law [MPEPIL]

Subject(s):
Burden of proof — Fact-finding and inquiry — Evidence — International organizations, practice and procedure
Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the
direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).
A. Notion
1 Verification means the collection of evidence relating to → compliance with international instruments,
whether legally binding or not, or the ascertainment of facts which are otherwise important in the
relationship between certain States, in particular facts arising in connection with some international
regulation such as environmental protection. The inclusion of the term verification in international
treaties or political documents is a relatively recent practice appearing in particular in the field of → arms
control and → disarmament, but also in → armistice or → peace treaties. It is, however, difficult to
discern a clear and consistent pattern of the use of more or less synonymous terms such as control,
supervision, inspection, investigation, and safeguards. There seems to be a tendency to consider
verification as a comprehensive notion comprising various means of ascertaining compliance with a
specific regulation, ie by such means as inspection, → fact-finding, → remote sensing, and so forth.

2 Verification may take place in different contexts. A factual situation may have to be ascertained as the
basis, or in the framework, of the resolution of an international dispute (see also → International Courts
and Tribunals, Evidence). The term verification is often used where ascertaining facts is part of a system
of ensuring compliance with some kind of international arrangement. In this sense, it may be part of a
system of international control. Fact-finding in this narrow sense—ascertainment of facts as a dispute
settlements procedure—may form part of a broader system of verification where certain facts relating to
the behaviour of certain actors may be ascertained on a regular basis or in view of a specific dispute, as in
the case of certain disarmament treaties. Verification may also be important where interests other than
actual compliance with a norm require knowledge of certain facts, as in the case of so-called → confidence-
building measures. Ascertainment of facts may be important as a basis for international or concerted
measures of States, such as in pollution abatement.

B. International Practice Contained in Treaties and Resolutions

3 A legal—or at least political—basis for verification in this broad sense can be found in various
international instruments, treaties, and resolutions, with or without reference to the term. Resolutions of
international organizations may be legally binding—eg UN Security Council Resolution 687 (1991) of 3
April 1991 (SCOR 46th Session 11) establishing an elaborate system of verification in Iraq (→ Iraq-Kuwait
War [1990–91]); and UN Security Council Resolutions 808 (1993) of 22 February 1993 (SCOR 48th Year
28) and 955 (1994) of 8 November 1994 (SCOR 49th Year 15) establishing the → International Criminal
Tribunal for Rwanda (ICTR) and the → International Criminal Tribunal for the Former Yugoslavia
(ICTY)—or they may be non-binding—eg resolutions of the UN Human Rights Council establishing fact-
finding missions or appointing rapporteurs concerning the situation in various countries (→ Special
Rapporteurs of Human Rights Bodies).

4 Generally speaking, the last decades are characterized by a learning process which has led to an array of
typical procedural instruments.

5 Verification plays a role in many different subject areas, eg peace and armistice agreements, creation of
a special status for certain areas, arms control, and international security, supervisory procedures
established by international organizations, international humanitarian law, protection of → human rights,
and protection of the environment. It may be used as a means of prevention, as part of international
dispute settlement, and as part of monitoring compliance with international regulatory regimes
established by international treaties or organizations. Ultimately, verification often constitutes a
confidence-building measure.

1. Preventive Verification
6 Verification is a major element of attempts to prevent conflicts from arising. Early warning is part of
many UN activities for this purpose. It is part of preventive diplomacy. The → United Nations
Development Programme (UNDP) is engaged in a systematic structural analysis of conflict causes which
allows preventive measures to be integrated into development. The Office for the Coordination of
Humanitarian Affairs has an early warning unit. In 2004, a number of UN agencies created a website for
the latest forecasts of natural disasters.

7 Fact-finding for the purpose of preparing and supporting measures of → conflict prevention is also part
of various types (long term, short term) of missions of the → Organization for Security and Cooperation
in Europe (OSCE).

2. Pacific Settlement of Disputes and International Judicial Procedures

8 Ascertaining facts is a necessary integral part of procedures for the resolution of international disputes
and, more generally, of international judicial procedures. Thus, many agreements concerning dispute
settlement under international law, be they general agreements or agreements relating to specific matters,
contain provisions concerning the taking of evidence or the sources of information to be used by the
bodies established under these agreements.

9 There is a great variety of such bodies, but the provisions on evidence constitute a common problem.
There are provisions on → arbitration, either of a general character (→ Permanent Court of Arbitration
[PCA]) or as a part of specific treaty regimes. There are permanent international courts, the
→ International Court of Justice (ICJ), and courts established by regional organizations or within a
specific treaty regime (→ International Tribunal for the Law of the Sea [ITLOS]). A quasi-judicial
institution is the dispute settlement system of the → World Trade Organization (WTO). In addition, there
are human rights courts, international criminal courts, and special bodies that have functions of
adjudication like the UN Compensation Commission established by the UN Security Council to decide on
claims for damages arising out of the Second Gulf War (→ Iraq, Invasion of [2003]).

10 There are instruments which empower the body in question to collect such information as it deems
useful (Art. 22 Convention for the Pacific Settlement of International Disputes [adopted 18 October 1907,
entered into force 26 January 1910] (1907) 205 CTS 233; Art. 62 Rules of the ICJ). A common provision
authorizes the body to hear witnesses and experts. Some instruments expressly provide for the body to
visit the scene or to carry out in loco investigations (Art. 13 Revised General Act for the Pacific Settlement
of International Disputes [adopted 28 April 1949, entered into force 20 September 1950] 71 UNTS 101;
Art. 66 Rules of the ICJ; Rule A1 (3) Annex to the Rules of the European Court of Human Rights [‘ECtHR
Rules’]; Art. 81 Rules of the International Tribunal for the Law of the Sea [‘ITLOS Rules’]; Art. 43
Convention on the Settlement of Investment Disputes between States and Nationals of Other States
[opened for signature 18 March 1965, entered into force 14 October 1966] 575 UNTS 159 [‘ICSID
Convention’]). A general question concerning the taking of evidence by judicial organs is whether they are
limited to evidence put forward by the parties to a litigation (adversarial system) or can decide ex officio to
take the kind of evidence they deem relevant (inquisitorial system). Although in practice there seems to be
a great reliance on evidence submitted by the parties, many international tribunals are not limited to proof
submitted by the parties, but may on their own motion take measures to obtain evidence (Art. 77 ITLOS
Rules; Art. 13 Understanding on Rules and Procedures Governing the Settlement of Disputes; to a limited
extent also Art. 50 Statute of the International Court of Justice). This is particularly the case with human
rights courts (Rule A1 (1) Annex to the ECtHR Rules; Art. 34 Rules of Procedure of the Inter-American
Court of Human Rights [‘IACtHR Rules’]). Other courts, including the → International Criminal Court
(ICC), are more oriented towards the adversarial concept. The court may request the parties to submit
certain evidence (Art. 69 (3) Rome Statute of the ICC; Art. 43 ICSID Convention). A special problem has
been encountered by the UN Compensation Commission, namely that of ascertaining relevant facts within
an appropriate time frame in cases of → mass claims.

3. Fact-Finding as an Independent Means of Dispute Settlement

11 There are also dispute settlement procedures where ascertaining facts is the only, or at least the
essential, element of the procedure. This type of procedure appears as International Commissions of
Inquiry in the Convention for the Pacific Settlement of International Disputes. The procedure has been
used in a limited number of cases. Procedures for ascertaining facts also appear in the context of certain
regulatory regimes for the clarification of specific facts. Examples are the → International
(Humanitarian) Fact-Finding Commission established pursuant to Art. 90 → Geneva Conventions
Additional Protocol I (1977) (1125 UNTS 3) tasked with ascertaining facts where there are allegations of
serious violations of international humanitarian law, and the inquiry commission to be established
pursuant to Art. 3 (7) and Appendix IV Convention on Environmental Impact Assessment in a
Transboundary Context ([done 25 February 1991, entered into force 10 September 1997] (1991) 30 ILM
802) tasked with advising on whether a certain project is likely to produce a significant transboundary
impact which would trigger the application of the Convention.

4. Verification as a Means of Monitoring Compliance

(a) Armistice and Peace Agreements; Peace Processes

12 The character of agreements relating to matters of State security is such that the verification of
compliance is of utmost importance. Thus, provisions on the verification of relevant facts (respect of
neutralized or demilitarized zones, demobilization, cessation of specific military activities, arms control)
are part of traditional peace treaties, armistices, and more recent agreements on peace processes or post-
conflict → peacebuilding. A common way of achieving this is through neutral or → mixed commissions or
→ observers with powers to investigate on the scene (see eg Arts 9–17 Protocol to the Declaration on the
Neutrality of Laos [signed and entered into force 23 June 1962] (1962) 47 DeptStBull 259). An elaborate
complex system of mixed and neutral bodies was created by the Treaty of Peace between the Arab
Republic of Egypt and the State of Israel ([signed 26 March 1979, entered into force 25 April 1979] (1979)
1136 UNTS 116). In the case of recent → cease-fire and armistice agreements, multilateral mechanisms are
created; verification is the task of observer groups (established by the UN or regional organizations) or
→ peacekeeping forces. Examples in international conflicts are: UN Truce Supervision Organization
(Palestine, 1948 to date); UN Military Observer Group in India and Pakistan (1949 to date); UN
Disengagement Observer Force (Israel-Syria, 1974 to date); UN Interim Force in Lebanon (Israel-
Lebanon, 1978 to date); UN Iran-Iraq Military Observer Group (1988–91); UN Iraq-Kuwait Observation
Mission (1991–2003); and UN Aouzou Strip Observer Group (Libya-Chad, 1994). Examples in non-
international conflicts are: UN Observer Mission in El Salvador (1991–95); UN Transitional Authority in
Cambodia (1992–93; → Cambodia Conflicts [Kampuchea]); Opération des Nations Unies au Mozambique
(1992–94); UN Operation in Somalia (1993–95; → Somalia, Conflict); UN Observer Mission in Georgia
(1993–2009); UN Mission of Observers in Tajikistan (1994–2000); UN Verification Mission in Guatemala
(1997); and UN Angola Verification Missions (three consecutive missions 1989–97). Their usual mandate
is to monitor the implementation of the ceasefire agreement, and to investigate and report ceasefire
violations.

13 Peace processes in internal conflicts require, in addition, a more extensive verification, for example in
the field of human rights and local arms control or demobilization. Enquiries into past and current
violations of human rights are important as confidence-building measures. Local disarmament may be
supervised or administered by peacekeeping operations. The holding of fair elections and referenda may
also be the object of verification (→ Election Monitoring, International); this is a frequent task of
peacekeeping operations.

14 Similar verification activities are also performed by regional organizations, sometimes in cooperation
with or under some kind of supervision of a UN mission. Examples are the OSCE Kosovo Verification
(established 1998, withdrawn 1999) to verify the implementation of UN Security Council Resolutions 1160
(1998) of 31 March 1998 (SCOR 53rd Year 10) and 1199 (1998) of 23 September 1998 (SCOR 53rd Year 13;
→ Kosovo); and the Economic Community of West African States Monitoring Group, the observer group
created by the → Economic Community of West African States (ECOWAS) in 1997, cooperating with the
UN Observer Mission in Sierra Leone (1998–99; → Sierra Leone). Several documents on peacekeeping
operations were adopted by the → Commonwealth of Independent States (CIS) which determine their
functions including monitoring over the implementation of armistice agreements and finding proof of
violations of such agreements.

15 A special case of a ceasefire establishing an arms control regime are the various mechanisms
established by UN Security Council Resolution 687 (1991) of 3 April 1991 (SCOR 46th Session 11) to verify
the respect by Iraq of the atomic, biological, or chemical weapons and other disarmament and arms
control obligations imposed by that resolution. As to nuclear disarmament, this became a special task of
the → International Atomic Energy Agency (IAEA). For the other restrictions (biological and chemical
weapons; missiles) a special UN organ was established, namely the UN Special Commission
(‘ UNSCOM ’), replaced in 1999 by the UN Monitoring, Verification and Inspection Commission
(‘UNMOVIC’).
16 A different type of fact-finding activity in post-conflict contexts are commissions mandated to clarify
events which have taken place during an internal conflict (often called truth commissions [→ Truth and
Reconciliation Commissions]). Some of these commissions are purely domestic while others have had an
international element (eg in Guatemala).

(b) Special Status of Certain Areas

17 Peace treaties, as well as other treaties relating to the status of certain areas, may provide not only for
→ demilitarization, but also for freedom of access and shipping, or for the prohibition of certain activities
(eg, the use of resources). Compliance with these provisions may also be controlled on the spot by
commissions or similar bodies. Examples are the Convention respecting the Free Navigation of the Suez
Maritime Canal ([signed 29 October 1888] (1909) 3 AJIL Supp 123; → Suez Canal), and the Convention
relating to the Regime of the Straits ([signed 24 July 1923, entered into force 6 August 1924] 28 LNTS 115)
as far as it relates to the Bosporus Straits (→ Dardanelles and Bosporus). Limitations on the stationing of
weapons of mass destruction are contained in the Antarctic Treaty ([signed 1 December 1959, entered into
force 23 June 1961] 402 UNTS 71); in the Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies ([signed 27 January
1967, entered into force 10 October 1967] 610 UNTS 205; see its Art. X [opportunity for observation] and
Art. XII [opening of installations on the basis of → reciprocity]); and in the Treaty on the Prohibition of
the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the
Ocean Floor and in the Subsoil Thereof (‘Seabed Treaty’ [concluded 11 February 1971, entered into force 18
May 1972) 955 UNTS 115; see its Art. III on unilateral right of verification through observation, possibility
of a multilateral inquiry), which all provide for some measures of verification. Art. 14 Protocol on
Environmental Protection to the Antarctic Treaty ([done 4 October 1991, entered into force 14 January
1998] (1991) 30 ILM 1455) provides for inspection in accordance with Art. VII Antarctic Treaty.

(c) Arms Control and International Security

18 Restraints on military activities in peace treaties and in agreements relating to special areas are
precursors or special instances of the more general subject of arms control and disarmament where
verification is really a key issue. As to the instruments of verification, considerable progress has been made
in recent decades, but there are still major difficulties. Regulatory systems must strike an appropriate
balance between the various interests at stake; a certain intrusiveness is needed to make the system
reliable as well as trustworthy (security or transparency interest), but there are, on the other hand,
legitimate State concerns to protect certain types of information (security interest, confidentiality interest
including the interest to protect commercial secrets). In respect of the construction of arms control
agreements, it is necessary to distinguish between bilateral ones dealing with the relationship between the
United States and the USSR/Russian Federation, universal multilateral regimes, and regional regimes.

19 In the relationship between the US and the USSR, the development started with the Interim
Agreement between the United States of America and the Union of Soviet Socialist Republics on Certain
Measures with Respect to the Limitation of Strategic Offensive Arms (‘SALT I Interim Agreement’ [signed
26 May 1972, entered into force 3 October 1972] 944 UNTS 3; → Strategic Arms Limitation Talks
[SALT]), terminated by the US withdrawal in 2002, which exclusively relied on national means of
verification. The first important treaty providing for on-site inspections was the Treaty between the United
States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-
Range and Shorter-Range Missiles ([signed 8 December 1987, entered into force 1 June 1988] 27 ILM 90).
The Treaty Between the United States of America and the Union of Soviet Socialist Republics on the
Reduction and Limitations of Strategic Offensive Arms (‘START I’ [signed 31 July 1991, entered into force
5 December 1994] Treaty Doc No 102–20, 16 UN Disarmament Yearbook, Appendix II 450; → Strategic
Offensive Arms, Treaties on Reduction and Limitation [START]) contains an elaborate verification regime
based on domestic technical means and bilateral reciprocal on-site inspections. It was followed by the
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons
and on Their Destruction (‘START II’ [opened for signature 13 January 1993, entered into force 29 April
1997] 1974 UNTS 45; the commitment being terminated by Russia in 2002), which referred to the START
I verification provisions. The new Treaty between the Russian Federation and the United States of
America on Strategic Offensive Reductions ([done 24 May 2002, entered into force 1 June 2003] 2350
UNTS 415) limits the number of nuclear warheads to be possessed by each party, but is completely silent
on verification.

20 The first multilateral arms control treaty concluded after World War II, the Treaty Banning Nuclear
Weapon Tests in the Atmosphere, in Outer Space and under Water ([signed 5 August 1963, entered into
force 10 October 1963] 480 UNTS 43), does not contain a provision on verification; it was considered
unnecessary because nuclear tests in the atmosphere and under water are easily detectable. Yet the
subsequent one, the → Non-Proliferation Treaty (1968) (‘NPT’; 729 UNTS 161), extended indefinitely in
1998, introduced a highly sophisticated verification regime through the system of safeguards. The relevant
duties do not flow directly from the treaty but from bilateral safeguards agreements concluded between
the IAEA and the State concerned. This agreement, now termed the ‘comprehensive safeguards
agreement’, has been standardized (IAEA ‘The Structure and Content of Agreements between the Agency
and States Required in Connection with the Treaty on Non-Proliferation of Nuclear Weapons’ [June 1972]
IAEA Doc INFCIRC/153). In order to ensure that no nuclear materials are diverted from lawful peaceful
uses to unlawful weapons uses, the nuclear fuel circle is controlled through elaborate systems of
documentation and routine on-site inspections. As a matter of routine, the system works reasonably well.
It has been strengthened by the fact that a number of States reserving their nuclear options (South Africa,
Argentina, Brazil) joined it later. Other States, however, have pursued this option without joining the NPT
(India, Pakistan, Israel). Iraq pursued this option despite joining, which was not detected for a long time.
The history of North Korea’s nuclear weapons programme is complex both from a legal and a political
point of view. As the safeguards system depends on the cooperation of the State that is subject to that
control, this may become a crucial issue as is shown by the controversy over the Iranian nuclear
programme, claimed by Iran to be for lawful peaceful purposes only, but where it is alleged that Iran’s co-
operation in the implementation of the safeguards system is deficient.

21 In contrast to the NPT, the subsequent multilateral arms control treaty, the Convention on the
Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin
Weapons and on Their Destruction (‘BWC’ [opened for signature on 10 April 1972, entered into force on
26 March 1975] 1015 UNTS 163), does not contain provisions on verification as, at the time of the
conclusion of the treaty, those weapons were considered to be of marginal military relevance. When this
perception changed in the 1990s, negotiations to add a verification protocol to the BWC took place
between 1995 and 2001, but failed due to US objections.

22 The major breakthrough in the field of verification was the Convention on the Prohibition of the
Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (‘CWC’
[opened for signature 13 January 1993, entered into force 29 April 1997] 1974 UNTS 45) which establishes
a far-reaching disarmament and arms control regime. Its verification system is quite intrusive as it relies,
to a large extent, on on-site inspections conducted by the staff of an international organization, the
Organization for the Prohibition of Chemical Weapons. Its intrusiveness is counterbalanced by the fact
that the initiation and conduct of the inspections are very carefully regulated so as to safeguard the
interests of the inspected State. There are two different types of verification procedures: a) routine
verification concerning certain predetermined localities (declared sites) or activities, being performed at
predetermined times; and b) challenge inspections being conducted in cases of doubt about compliance,
conducted at short notice at requested localities. The routine verification procedures relate to: a) the
destruction of chemical weapons; b) the destruction or conversion to peaceful purposes of chemical
weapons production facilities; and c) the non-diversion of certain chemical substances to weapons
purposes.

23 The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel
Mines and on Their Destruction (‘Ottawa Convention’ [concluded 18 September 1997, entered into force 1
March 1999] 2056 UNTS 211) which contains quite far-reaching arms control and disarmament provisions
contains only a weak verification system. States must submit declarations to be updated annually (Art. 7
Ottawa Convention), but the correctness of the declarations is not verified. In addition, there is a
clarification procedure similar to a challenge inspection with a fact-finding mission under the authority of
the Meeting of the States Parties (Art. 8 Ottawa Convention).

24 The Comprehensive Nuclear-Test-Ban Treaty ([adopted 19 September 1996, not yet entered into force]
GAOR 50th Session Supp 49, 14) contains a different verification system, due to the specific characteristics
of its subject matter. It is administered by an international organization created for this purpose. The
routine verification system relies on a worldwide network of long distance seismic observation and data
collection, while challenge inspections can be conducted in loco on request.

25 An important system of regional arms control is constituted by the nuclear weapons free zones. Their
compliance control is linked to the safeguards system of the IAEA (Art. 13 Treaty for the Prohibition of
Nuclear Weapons in Latin America [done 14 February 1967, entered into force 22 April 1968] 634 UNTS
326 [‘Tlatelolco Treaty’]; Art. 8 South Pacific Nuclear Free Zone Treaty [concluded 6 August 1985, entered
into force 11 December 1988] 1445 UNTS 177 [‘Rarotonga Treaty’]; Arts 5 and 10 Treaty on the Southeast
Asia Nuclear Weapon-Free Zone [signed 15 December 1995, entered into force 27 March 1997] (1996) 35
ILM 639 [‘Bangkok Treaty’]; Art. 9 and Annex II African Nuclear-Weapon-Free Zone Treaty [signed 11
April 1996, entered into force 15 July 2009] (1996) 35 ILM 698 [‘Pelindaba Treaty’]; Art. 8 Treaty on
Nuclear Weapon-Free Zone in Central Asia [signed 8 September 2006, entered into force 21 March 2009]
[‘Semipalatinsk Treaty’]). The Rarotonga and Pelindaba Treaties add an inter-State complaint procedure
which may lead to an on-site inspection decided by a treaty body (commission) which resembles the
challenge inspections under the CWC. The most elaborate system is that of the Bangkok Treaty which
contains the reference to the IAEA safeguards (Art. 5 Bangkok Treaty), a reporting system (Art. 11
Bangkok Treaty; → Reporting Systems), a request for clarification (Art. 12 Bangkok Treaty), the request
for a fact-finding mission (Art. 13 Bangkok Treaty), and the power of the Executive Committee of the
Treaty to determine that there is a violation.

26 Regional arms control with different verification systems was, for a long time, important in Europe
and still plays a certain role. A first step was the arms control component of the → Western European
Union (WEU) with an emphasis on the control of German armaments (Protocol III to the Treaty for
Collaboration in Economic, Social and Cultural Matters and for Collective Self-Defence on Control of
Armaments, with Annexes [adopted 23 October 1954, entered into force 6 May 1955] 211 UNTS 364)
which had an elaborate verification system administered by an agency of the WEU. Under the Conference
on Security on Co-operation in Europe and its successor, the OSCE, verification systems have been
designed as confidence-building measures: the Document of the Stockholm Conference on Confidence-
and Security Building-Measures in Europe ([19 September 1986] (1987) 26 ILM 190), the Vienna
Document 1992 of the Negotiations on Confidence- and Security-Building Measures ([4 March 1992]), and
the Vienna Document 1994 on Confidence- and Security-Building Measures’ ([28 November 1994]
DOC.FSC/2/95, all relating to certain military activities such as manoeuvres); the Treaty on Conventional
Armed Forces in Europe (‘CFE Treaty’ [done 19 November 1990, entered into force 9 November 1992]
(1991) 30 ILM 6, completely revised by the Agreement on Adaptation of the Treaty on Conventional
Armed Forces in Europe’ [(done 19 November 1999, not yet entered into force) CFE.DOC/1/99] and
suspended by Russia in 2007; → Conventional Armed Forces in Europe [CFE] Regime); and the Treaty
on Open Skies ([signed 24 March 1992, entered into force 1 January 2002] (2002) Great Britain Treaty
Series No 27). They all provide for inspections—the Treaty on Open Skies for observation by overflights
regulated on the basis of a quota system—performed by Member States on or over the territory of other
Member States.

(d) Human Rights Instruments

27 Procedures for ascertaining relevant facts are part of all measures designed to ensure compliance with
human rights obligations of States. There are treaty-based procedures and procedures based on general
human rights powers of certain international organizations.

28 As to the first category, there are three different approaches to ensuring compliance with international
human rights instruments. First, there is a routine evaluation by treaty bodies based on self-reporting by
States (→ Human Rights, State Reports); secondly, there are complaint-based procedures; and thirdly,
there are ex officio inquiries. These instruments are used in different ways in universal and regional
human rights conventions.

29 The reporting system, originally developed by the → International Labour Organization (ILO), has
become a well-established and successful procedure for ascertaining facts in the framework of universal
human rights treaties: Art. 16 → International Covenant on Economic, Social and Cultural Rights (1966)
(993 UNTS 3); Art. 40 → International Covenant on Civil and Political Rights (1966) (‘ICCPR’; 999 UNTS
171); Art. 9 International Convention on the Elimination of all Forms of Racial Discrimination ([opened
for signature 7 March 1966, entered into force 4 January 1969] 660 UNTS 195); Art. 18 Convention on the
Elimination of All Forms of Discrimination against Women (‘CEDAW’ [adopted 18 December 1979,
entered into force 3 September 1981] 1249 UNTS 13); Art. 19 Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (‘CAT’ [adopted 10 December 1984, entered into force
26 June 1987] 1465 UNTS 112); and Arts 44–45 Convention on the Rights of the Child ([adopted 20
November 1989, entered into force 2 September 1990] 1577 UNTS 3). It is also used in certain regional
conventions: Arts 21–24 and 27 → European Social Charter 1961 ([signed 18 October 1961, entered into
force 26 February 1965] 529 UNTS 89); Art. C European Social Charter 1996 ([adopted 3 May 1996,
entered into force 1 July 1999] CETS No 163); and Art. 25 European Framework Convention for the
Protection of National Minorities ([opened for signature 1 February 1995, entered into force 1 February
1998] 2151 UNTS 243). The independent, though non-judicial, treaty bodies have systematically insisted
on regular and meaningful reporting, have broadened their sources of information, have engaged in a real
dialogue with reporting States, and have extensively used their powers to make comments and
observations.

30 Second, there are procedures based on complaints in particular cases. As a rule, these procedures are
optional, ie based on a declaration to be made in addition to the ratification of the relevant treaty. Under
the universal conventions in question, these complaints are submitted to the same treaty bodies as the
regular State reports. They may be lodged by States (Art. 41 ICCPR; Art. 21 CAT) or by individual victims
of violations (Optional Protocol to the ICCPR [adopted 16 December 1966, entered into force 23 March
1976] 999 UNTS 302; Optional Protocol to CEDAW [adopted 6 October 1999, entered into force 20
December 2000] 2131 UNTS 83 [‘OPCEDAW’]; Art. 22 CAT). The committee may investigate the case but
the results of the procedure are only observations or the expression of views, not a statement of a violation.
The practice of some of these bodies, however, is to adopt documents with a very similar style to that of
judgments.

31 The three regional human rights treaties—the → European Convention for the Protection of Human
Rights and Fundamental Freedoms (1950) (‘ECHR’; 213 UNTS 221), the → American Convention on
Human Rights (1969) (‘ACHR’; 1144 UNTS 123), and the → African Charter on Human and Peoples’
Rights (1981) (‘AChHPR’; 1520 UNTS 217)—have a different institutional set-up. They have established
two different bodies, namely a non-judicial one—a commission with a number of different functions and
without the power to take binding decisions—and a court.

32 Under the European system, the European Commission of Human Rights (‘ECommHR’) had an
important screening function before a case could reach the ECtHR, which in the early times of the
existence of the ECHR was considered an essential safeguard of State → sovereignty. By Protocol 11 to the
ECHR ([done 11 May 1994, entered into force 1 November 1998] 2061 UNTS 12), however, the ECommHR
was abolished. Instead, there is now a direct access of aggrieved individuals to the ECtHR.

33 The → Inter-American Commission on Human Rights (IACommHR) was established by the

→ Organization of American States (OAS) in 1959, ie before the adoption of the ACHR. It is, thus, not
only a treaty body, but also belongs to the second category of human rights protection mechanisms. Its
powers are very broad and they are not limited to receiving complaints, petitions, or communications
alleging human rights violations. Unlike under the new European system, only the IACommHR and States
can bring a case before the IACtHR.

34 The → African Commission on Human and Peoples’ Rights (ACommHPR) also has very broad powers
to promote human rights. States may submit complaints to it, and it is open to communications by
individuals and organizations while it has broad discretionary powers to deal or not to deal with them. The
→ African Court on Human and Peoples’ Rights (ACtHPR) is a later addition to the AChHPR. It was
finally established in 2004.

35 Third, there are provisions which provide for an ex officio inquiry by a treaty body under certain
conditions (Art. 20 CAT; Art. 8 OPCEDAW). The IACommHR and the ACommHPR may also ex officio
undertake inquiries and other steps to ensure compliance with human rights.

36 A survey of practice shows that State complaint procedures play no or only a marginal role. Individual
petitions or complaints as well as ex officio inquiries are most important. As to individual complaints,
various barriers exist: in some cases, an individual complaint is only possible on the basis of an additional
declaration of the State or on the basis of an additional treaty (optional protocol); and in the inter-
American system, it is only the IACommHR, not the aggrieved individual, that may bring a case before the
IACtHR. Only the recent reform of the European system has provided for a direct and obligatory access of
the individual to the ECtHR.

37 As to the second category, the UN and regional organizations (OAS, OSCE, → Council of Europe
[COE], → African Union [AU]) possess certain general powers for the promotion and protection of human
rights. They are designed to ensure compliance with human rights in a more general way, ie not
necessarily related to a specific treaty regime. Special types of procedures have been developed in this
framework.

38 Under the aegis of the UN Commission on Human Rights, now the Human Rights Council, ‘special
procedures’ are → mandates given to individual persons (special rapporteurs) or to expert groups to
report on specific human rights problems (country mandates or thematic mandates). In the framework of
the OAS, the IACommHR is the relevant body. The OSCE possesses different kinds of mechanisms for that
purpose.

(e) International Humanitarian Law

39 Ascertaining facts is also an important element of procedures and institutions designed to ensure
compliance with international humanitarian law. Traditionally, this is one of the important tasks of the
→ protecting power pursuant to Art. 8 Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field (‘Geneva Convention I’ [adopted 12 August 1949, entered
into force 21 October 1950] 75 UNTS 31) and Art. 126 Geneva Convention relative to the Treatment of
Prisoners of War (‘Geneva Convention III’ [adopted 12 August 1949, entered into force 21 October 1950]
75 UNTS 135; → Geneva Conventions I–IV [1949]). Gradually, this function of monitoring compliance
with international humanitarian law has been taken over by the → International Committee of the Red
Cross (ICRC) (Art. 126 Geneva Convention III: right of initiative of the ICRC). A special procedure for
ascertaining facts concerning alleged violations of international humanitarian law is the International
(Humanitarian) Fact-Finding Commission established pursuant to Art. 90 Geneva Conventions Additional
Protocol I. A case may be brought before the Commission by an agreement between the parties or
unilaterally where both parties have recognized its obligatory competence (more than 70 States, at the
time of writing).

40 Fact-finding in the case of alleged violations of international humanitarian law has also been
performed by UN organs, in particular the UN Security Council (UNSC Res 780 [1992] [6 October 1992]
SCOR 47th Year 36 concerning Yugoslavia; UNSC Res 1405 [2002] [16 April 2002] SCOR [1 January
2001–31 July 2002] 226 on the Israeli operation in Jenin; UNSC Res 1564 [2004] [18 September 2004]
SCOR [1 August 2004–31 July 2005] 110 concerning Darfur); the Human Rights Council (Resolution S-
2/1: Grace Situation of Human Rights in Lebanon Caused by Israeli Military Operations [11 August 2006]
UN Doc A/HRC/S-2/1; Resolution S-9/1: Grave Violations of Human Rights in the Occupied Palestinian
Territory, Particularly Due to the Recent Israeli Military Attack against the Occupied Gaza Strip [12
January 2009] UN Doc A/HRC/S-9/L.1); and also, on occasion, the UN General Assembly (UNGA Res
35/144 C ‘Chemical and Bacteriological Weapons: Resolution C’ [12 December 1980] GAOR 35th Session
Supp 48, 61; UNGA Res ES-10/10 ‘Illegal Israeli Action in Occupied East Jerusalem and the Rest of the
Occupied Palestinian Territory’ [7 May 2002] GAOR 10th Emergency Spec Session Supp 1, 19)

(f) International Environmental Law

41 Environmental agreements have the purpose to ensure, or bind States to achieve, a certain state or
quality of the environment, or they relate to certain human activities having an impact, be it direct or
indirect, on the environment. In both cases, ascertaining the relevant facts, ie the state of the environment
or the actual human behaviour, has to be monitored in order to assess whether an agreement has achieved
its purpose or is correctly complied with by the Member States. Therefore, ascertaining and assessing
these facts is part of procedures established to assess the → effectiveness of a treaty regime and of
procedures created to ensure compliance with such a regime.

42 Conventions on the protection of certain regional waters provide for comprehensive marine pollution
monitoring systems (Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter of 1972 [adopted 13 November 1972, entered into force 30 August 1975] 1046 UNTS 138;
Convention for the Prevention of Marine Pollution from Land-Based Sources [done 4 June 1974, entered
into force 6 May 1978] 1546 UNTS 120; Convention for the Protection of the Mediterranean Sea against
Pollution [done 16 February 1976, entered into force 12 February 1978] 1102 UNTS 44; Convention for the
Protection of the Marine Environment and the Coastal Region of the Mediterranean [adopted 10 June
1995, entered into force 9 July 2004]; and Convention for the Protection of the Marine Environment of the
North-East Atlantic [opened for signature 22 September 1992, entered into force 25 March 1998] 32 ILM
1069 [‘OSPAR Convention’], in particular its Annex IV; → Marine Environment, International
Protection). As a basis for combating air pollution in Europe, the Convention on Long-Range
Transboundary Air Pollution ([done 13 November 1979, entered into force 16 March 1983] 1302 UNTS
217) provides for an exchange of information on relevant data, in particular through the establishment of a
Co-operative Programme for Monitoring and Evaluation of the Long-Range Transmission of Air
Pollutants in Europe (→ Air Pollution, Transboundary Aspects).

43 A number of multilateral environmental agreements provide for a formalized compliance procedure

where ascertaining the relevant facts is a necessary first part. The Montreal Protocol on Substances that
Deplete the Ozone Layer ([adopted 16 September 1987, entered into force 1 January 1989] 1522 UNTS 3),
by an addition adopted in 1990 and further defined by later additions, has set the example. Today, such
procedures have been established by governing bodies—Conference of the Parties (‘COP’) decisions—for
most multilateral environmental agreements: as regards the Kyoto Protocol to the United Nations
Framework Convention on Climate Change ([adopted 10 December 1997, entered into force 16 February
2005] (1998) 37 ILM 32), see the Marrakesh Accords adopted by the Seventh COP of the UN Framework
Convention on Climate Change ([29 October–10 November 2007] UN Doc FCCC/CP/2001/13/Add.1) and
Decision 27/CMP.1: Procedures and Mechanisms relating to Compliance under the Kyoto Protocol ([28
November–10 December 2005] UN Doc FCCC/KP/CMP/2005/8/Add.3, 92); as regards the Convention
on Long-Range Transboundary Air Pollution 1979, see Executive Body Decision 1997/2 concerning the
Implementation Committee, Its Structure and Functions and Procedures for Review of Compliance ([7
January 1998] UN Doc ECE/EB.AIR/53, 28); as regards the Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and Their Disposal ([done 22 March 1989, entered into
force 5 May 1992] 1673 UNTS 57), see COP Decision VI/12 on the Establishment of a Mechanism for
Promoting Implementation and Compliance ([9–13 December 2002] UNEP/CHW.6/40); as regards the
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in
Environmental Matters ([done 25 June 1998, entered into force 30 October 2001] 2161 UNTS 447), see
Decision I/7 on Review of Compliance ([21–23 October 2002] Doc.ECE/MP.PP/2002/2/Add.8). Pursuant
to Arts 22 and 23 OSPAR Convention, monitoring and assessing compliance is a task of the OSPAR
Commission. The structure of these mechanisms is basically similar, but it varies in a number of important
details. Where there is doubt about compliance with the regime, the case is referred to a body specifically
created for that purpose—an implementation committee or compliance committee. This committee may
consist of a limited number of Member States or of persons elected in their individual capacity. As a rule, it
is at least de facto independent. The procedure may be triggered by a State Party, including the State
whose compliance is doubtful, and under certain conditions also by the secretariat of the treaty in
question. The role of the secretariat as a centre of information and communication is important. Where
the secretariat triggers the procedure, this is a certain guarantee of professional standards. The procedure
of this body is usually non-confrontational. It first assesses the situation. The factual basis of this
assessment varies; it may be a report by the State whose compliance is at stake, it may be the result of an
elaborate monitoring system (eg under the Kyoto Protocol). Then, the committee makes a decision or
recommends further measures.

(g) Control Procedures of International Organizations

44 International organizations perform control procedures in diverse contexts, many of which have
already been mentioned. A number of organizations have the function of observing and monitoring the
behaviour of Member States which affects the field of competence of a given organization. They have to
rely on fact-finding procedures where they need a factual basis for measures to be decided and for
knowing whether the obligations existing within the organizations’ system are complied with. This is, for
instance, important in the economic field; the → International Monetary Fund (IMF) monitors the
economic behaviour of Member States within the framework of its surveillance of exchange rates (Art. IV
(3) Articles of Agreement of the International Monetary Fund [signed and entered into force 27 December
1945] 2 UNTS 39 [‘IMF Agreement’]) and in relation to the access of States to the resources of the IMF
(Art. I (v) IMF Agreement). The Trade Policy Review Mechanism (Annex 3 to the Marrakesh Agreement
Establishing the World Trade Organization [adopted 15 April 1994, entered into force 1 January 1995]
1867 UNTS 154) exercises certain surveillance over Member States’ trade policy.

C. The Verification Process

45 Any system of verification has to strike a balance between the interest of obtaining information for the
purposes of a particular treaty regime or for achieving the goals of a particular organization (transparency;
effectiveness), and the interests of protecting information, which may be legitimate or not (often, but not
correctly, called sovereignty interests). Transparency interests are, for instance, based on the needs of
justice (evidence in judicial proceeding), the desire to protect common values (human rights instruments),
security-and confidence-building (arms control, armistice agreements, peace processes), and the need to
solve environmental problems and to avoid windfall profits or free riders (environmental protection
regimes). The more emphasis there is on transparency, the more intrusive the verification regime will be.
Information protection interests may also be based on security interests—on the need to protect industrial
or commercial secrets, proprietary information, or privacy—but also on general political considerations.
The balance needed to be struck is reflected in the choice of means of verification and the rules of
procedure of the verification process. The type of institution handling the verification process and the
procedural rights and duties (including duties of co-operation), which the various actors possess therein,
are the central issue. In this respect, it is possible to observe a learning process in the international system
relating to these important technicalities of verification regimes. The appropriate balance is crucial for the
acceptance of any such verification regime.

1. Means of Verification—National or International

46 Means of verification may be categorized in various ways. The major legal distinction is between
national and international means. National means of verification are those which a State can use
unilaterally to observe a factual situation or activities occurring under the jurisdiction or control of
another State. International means of verification are procedures based on bilateral or multilateral
agreements between States and involving some kind of co-operative arrangement determining the exact
scope of the verification, as well as the powers of the institutions and persons involved in it. The means of
verification may consist of traditional procedures of taking evidence from witnesses or of experts
observing certain situations in loco. Where the facts to be verified are of a scientific, physical, or chemical
nature, technical means of verification such as automatic recording and measurements become at least as
important. Means of verification may be direct or indirect; they may directly relate to the facts which
constitute compliance with, or violation of, an international obligation, or they may relate to other facts
from which a conclusion is possible as to the directly relevant facts.

(a) National Means of Verification

47 National means of verification are, on the one hand, the traditional means by which States observe the
activities and attitudes of other States, ie by systematic collection of generally available, mainly published,
materials, inter alia, through reporting by diplomatic or consular missions. Where the text of arms control
instruments speaks of national means of verification (eg Art. V SALT I Interim Agreement; Arts VI (3) lit.
a and X START I), this generally refers to technical procedures of remote observation, such as
seismographic detection of explosions, radar and other physical means of detection, reconnaissance
flights, and observation from satellites (→ Military Reconnaissance). These treaty provisions generally
stipulate that national means of verification must be used ‘in a manner consistent with generally
recognized principles of international law’ (eg, Art. V (1) SALT I Interim Agreement; Art. X (1) lit. a START
I). The most important principle which is at stake in this connection is territorial integrity. This principle
does not prevent a State from using technical means in order to observe events on the territory of another
State, but a State may not physically enter the territory of another for the purposes of observation without
the other’s consent. Radar and seismographic observation is permissible, but reconnaissance flights in
foreign → airspace are not. Observation from satellites has become an accepted feature in international
practice and, thus, cannot be equated to prohibited reconnaissance flights.

48 Another important principle in this respect is that of non-interference with lawful activities of other
States. This is of particular importance for national observation measures on the → high seas. Such
measures may, for instance, not interfere with the freedom of navigation of other States (→ Navigation,
Freedom of; see eg Art. III (1) Seabed Treaty).

49 On the other hand, where such national means of verification constitute an agreed means of ensuring
compliance with international obligations, such verification may not be hampered by the State so
observed. Thus, treaties providing for national means of verification, as a rule, also contain the
undertaking not to interfere with the use of such means.

(b) International Means of Verification

50 International verification may refer to verification with the consent of the State whose compliance is at
stake, and verification by an international institution. If carried out without the consent of the State whose
behaviour is verified, ie unilaterally, the organization may take such measures only if it possesses statutory
powers to engage in such activities. The practice of international organizations interprets the general
powers of plenary organs of such organizations as permitting an investigation (eg, various inquiries
instituted by the UN General Assembly), but in the absence of special provisions or of an ad hoc consent,
the means of such an investigation may not go beyond what a State under similar circumstances is allowed
to do. There is no general right of international organizations to conduct on-site investigations.

51 If, however, the international body instituting an investigation possesses powers to take binding
decisions, more extensive duties to co-operate may be imposed on the State concerned (eg, by virtue of a
binding decision of the Security Council under Art. 25 UN Charter). The consent of a State to a verification
procedure may be given generally in advance, in particular in a treaty relating to the subject, or ad hoc for
a particular investigation. In this case, four kinds of duties can be distinguished: a general duty to facilitate
the investigation, a duty to provide information, a duty to record certain information and to make it
available or accessible, and a duty to permit on-site inspection.

52 General duties to facilitate an investigation and to co-operate with the investigating body are a
common feature of monitoring compliance with many international instruments. A special form of this
duty to provide information is to declare certain locations or facilities for the purposes of verifying the
implementation of arms control agreements (eg the CWC and the NPT safeguards). Information may have
to be provided to another party or to an international agency on a regular basis or on request.

53 A duty to record certain information may be imposed on a State or on certain private actors. Thus, an
essential element of the IAEA safeguards is a system of book-keeping in respect of fissionable materials.
Duties to keep records or to make measurements are meaningful only if the results are accessible to other
States Parties or to an international agency (IAEA, pollution control).

54 On-site inspections have only been accepted reluctantly by States. They are, however, part of the
system of ensuring compliance with international humanitarian law (eg access to prisoners for the ICRC),
a usual component of armistice agreements, and of the verification mechanism of a number of arms
control agreements, including the IAEA safeguards.

55 They have also been imposed by the UN Security Council (eg in Iraq after 1991). As the practice shows,
on-site inspections are difficult, if not impossible, to be conducted without the actual co-operation of the
State on whose territory they take place.

2. Institutions
56 A considerable number of modern treaty regimes provide for an international institution to handle the
process of ascertaining the relevant facts. These may be existing organizations (the UN in the case of
peacekeeping operations and some human rights regimes; the IAEA in the case of the NPT), or
organizations created especially for a particular treaty regime (the Organization for the Prohibition of
Chemical Weapons in the CWC). Certain treaty regimes provide for networks of inspections conducted by
States Parties (CFE Treaty; Treaty on Open Skies; Antarctic Treaty).

57 Different types of organs tasked with ascertaining facts can be distinguished: political organs (eg the
UN Security Council or the UN Secretary-General), independent bodies of qualified persons (the
committee established by the ICCPR), specialized bureaucracies (the IAEA or the OPCW secretariat),
individual persons given an international mandate (eg special rapporteurs), or judicial or quasi-judicial
bodies.

3. Procedures
58 The structures of the various procedures mentioned in this contribution are very different. There are
bilateral, adversarial procedures (arbitration, WTO dispute settlement), co-operative procedures before
international organs (eg reporting systems), and inquisitorial procedures (eg UNSCOM ), and mixtures
thereof. The rights and duties of parties vary according to the type of procedure.

59 The first procedural question is how a process of ascertaining facts is initiated. Certain regimes
provide for ex officio activities of the international institution (peacekeeping operations; Art. 22 CAT). As
this is a very intrusive procedure, it is accepted only in special situations and can lead to considerable
difficulties (eg UNSCOM ). The system is less intrusive where the place, manner, and time of the
verification activities are regulated in detail under the relevant treaty regime (routine inspection under the
CWC; nuclear safeguards under the NPT). The CFE Treaty and the Treaty on Open Skies establish a quota
system putting a numerical cap on inspections or observation flights performed or received. Where a
regime establishes reporting duties, this also means that a process of ascertaining facts takes place at
regular intervals. A different possibility is that the process is initiated by a State, an individual, or an
international organization in cases of doubt about compliance, or where a violation is alleged to have
happened. This is the case with the so-called ad hoc or challenge inspections pursuant to arms control
treaties and procedures triggered by complaints or communications in the case of human rights regimes.

60 The next question to be decided is that of the scope of the activities for ascertaining facts, ie the
mandate. This is, first, a problem in the case of judicial proceedings where those activities may only relate
to facts which are relevant for the decision requested. The scope of the mandate is very important for the
intrusiveness and, hence, the acceptance of a procedure. In the case of UN fact-finding missions, this is an
important question. Certain resolutions of the Human Rights Council (see above) have been criticized as
defining a biased mandate. In the field of arms control, the scope of verification activities tends to be
clearly defined, and thereby limited, under various treaty regimes. For example, in the case of the NPT, the
verification activities under the safeguard system relate to the nuclear fuel circle only.

61 Next is the question of admissible information or permissible means to obtain information. In the case
of reporting systems, the basis of the entire process of ascertaining facts is information provided by the
States themselves, ie self-reporting. It is at least doubtful whether this is sufficient to satisfy the
transparency at stake. Therefore, there is a trend to broaden the basis of information by requiring the
State concerned to give additional information on request or by empowering the evaluating body to accept
or even request information from other sources, for example → non-governmental organizations.
Evidence may be submitted in written form or through oral testimony. The most intrusive manner of
taking evidence is on-site inspection or visits. Some processes of obtaining information are by necessity in
loco, eg, fact-finding by peacekeeping operations or military observers. In the case of arms control
regimes, the scope of on-site inspections is very carefully regulated in order to safeguard the legitimate
interests of the inspected party. In the case of adversarial proceedings, the relevant question is whether
and to what extent the judicial or quasi-judicial body in question is entitled to request evidence ex officio
or whether it is restricted to the means of evidence submitted by the parties. WTO panels may request
information from any individual, but an agreement of the parties on facts is possible.

62 The assessment of the facts may raise the question of the burden of proof. There are general principles
of the law of evidence which are derived from private law. A party putting forward a claim bears the
burden of proof for the facts which constitute the basis of the claim; the party relying on the exception to a
rule (eg, on self-defence as a circumstance precluding wrongfulness) bears the same burden for the facts
which constitute the basis for this particular exception. Where the requirements of a prima facie proof are
fulfilled, the burden of proof shifts. These general rules do not always satisfy the needs of justice in
particular situations. There is, for instance, a presumption in favour of victims’ allegations in human rights
cases where a government has not submitted pertinent information (Art. 42 Regulations of the American
Commission on Human Rights [1992] OEA/Ser.L/V/II.82 Doc.6 Rev.1, 103).

63 The result of the procedure as a rule is some kind of a report. In the case of judicial proceedings, the
final assessment leads to a binding statement of the facts which is the basis for the binding statement of
the law. As to other procedures, it is very rare that the result of the assessment is binding, although—
depending on the political or social acceptance of the assessing body—the report may carry an
authoritative weight. This is the reason why the powers of an assessment body to formally state the result
of an assessment may be restricted, eg, in the case of human rights regimes limited to general comments
or the like (→ General Comments/Recommendations). In the case of arms control regimes, the content of
a final report may be determined in a process of co-operation between the inspection team and the
inspected party in order to safeguard all interests involved.

64 Publicity is a question which arises in relation to the procedure itself and to its result. Transparency
would often require public proceedings, but the confidential character of the proceeding, which better
serves the information protection interests at stake, is the price to be paid for the acceptance of the
procedure as a whole.

65 The final problem is that of the consequences which a statement of facts may have in the framework of
a particular regulatory regime. It may form a basis for decentralized negative reactions (eg
→ countermeasures) or for reactions of the organs of the regime (eg the suspension of membership rights
or of the right to assistance), but in certain cases, quite to the contrary, it forms the basis for assistance
granted to the defaulting State to enable it to return, in the interest of the functioning of the system, to a
situation of compliance.

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Select Documents
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