Biological Weapons Convention (BWC)

BWC Review Conference Bulletin, December 5, 2001

Steady Progress Clears Way for Debate of Crucial Issues as Conference Enters Final Phase

By Jenni Rissanen

Developments have picked up speed during the third and final week of the Fifth Review Conference of the Biological Weapons Convention (BWC). Work is now actively underway in different settings: in the Drafting Committee, under the chairmanship of Ambassador Munir Akram of Pakistan, which took over from the Committee of the Whole on Friday, November 30, and in the formal and informal consultations of the eleven appointed Facilitators. Although delegates' evaluations on whether the Conference will be able produce a Final Declaration by the end of this week seem to vary from hour to hour, there is general optimism in the air. Much will depend on whether delegates can sustain the relatively constructive mood during the final crucial days, containing any potentially decisive explosions over the question of non-compliance, and demonstrating sufficient political will to reach agreement on the crucial, interrelated issues of the future of the Ad Hoc Group (AHG), whose efforts to draft a verification Protocol stalled in late July, and the follow-up to the Review Conference.

The Conference and the Drafting Committee have been assisted since Friday by the Facilitators' search for draft formulations on eleven key issues: the Solemn Declaration, the question of use of biological weapons (BW), legislation on the criminalisation of activities contrary to the Convention, safety, investigations, transfer, assistance, disease surveillance, confidence-building measures (CBMs), cooperation, and, inseparably, the fate of the AHG and the follow-up to the Conference. As requested by the President of the Conference, Ambassador Tibor Tóth of Hungary, the Facilitators reported back to the plenary on Tuesday evening, December 4. Although, as expected, the majority asked for more time to resolve outstanding issues, some announced they had acceptable text ready for inclusion in the Final Declaration.

Iran's Ambassador, Ahsgar Soltanieh, told the Committee consensus had been found on the question of disease surveillance. The Final Declaration would urge states parties to take measures for the fullest possible exchange of equipment, materials, scientific and technological information and to promote technology transfers, particularly to developing countries, for the purpose of disease surveillance and control. Eleven different measures are listed, including exchange of information on research programmes, exchanges of scientists and experts and increased technical cooperation and assistance. The list also includes a coordinating mechanism by the World Health Organisation (WHO), the Food and Agriculture Organisation (FAO) and the World Organisation for Animal Health (OIE, Office International des Epizooties) for epidemiological surveillance and disease prevention by making use of existing international effort and strengthening existing global networks for disease surveillance and building up their capabilities to respond to outbreaks.

Ambassador Hubert de la Fortelle of France, too, is understood to have reached broad agreement on its compromise proposal on CBMs. His text notes that participation in submitting the CBMs has been neither satisfactory nor universal and that not all responses have been prompt or complete. Thus the Declaration would include a call for full and timely declarations and note the value of nil returns. It would also note proposals to expand the scope of the CBMs, both by improving the existing measures and creating new ones. The next meeting of states parties could expand the scope of CBMs A (declaration of all high containment facilities and national biological defence research and development programmes), B (declaration of unusual outbreaks of disease), E (declaration of legislation related to the BWC) and G (declaration of human vaccine production facilities), improve CBM C (encouragement of publication of results), and discuss adding a declaration on production facilities for biocontrol and plant inoculants, as suggested by South Africa.

Ambassador Chris Westdal of Canada is close to agreement on his text on assistance, although some delegations still harbour reservations. Canada envisages that the Final Declaration will stress the importance of Article VII (assistance) and affirm that requests for assistance would be considered promptly, with emergency assistance provided in a timely fashion. It is understood that a difficult issue has been that of access to medicines during outbreaks of disease. The United States is understood to oppose making such access an obligation, as it wants, in the case of a global outbreak, to give priority to its own population's supply.

Britain's Ambassador, David Broucher, the Facilitator on the Solemn Declaration, has made good progress. However, at least a couple of sticking points remain. The Declaration's first two paragraphs, setting out the states parties' determination to accomplish the total elimination of all weapons of mass destruction (WMD) and to achieve general and complete disarmament under strict and effective international control, are understood to have caused difficulties for some delegations. The United States had found it difficult to agree to the reference on the total elimination of all WMD - language used in the composite text (CRP.8) of the AHG negotiations. However, it seems that pleas by other delegations, as well as Broucher's efforts, have now borne fruit, with the United States prepared to accept the language. In addition, the US is said to have difficulties with a paragraph recognising the importance of strengthening the Convention, including through binding measures. This dispute is not expected to be resolved until the end of the Conference because of its obvious link to the AHG and the Protocol.

Chile's Alfredo Labbé has been tackling the timely topic of BW use. As in 1996, the Conference is expected to reaffirm that the use of biological agents and toxins other than for peaceful purposes, "in any way and under any circumstances", is effectively in violation of Article I of the Convention. However, new proposals, by Brazil among others, to have this non-use norm apply also to weapons, equipment or means of delivery within the states parties' own territory, are still under dispute, as is a reference emphasising that that the use of zoological vectors is inconsistent with Article I.

Mexico's Ambassador Gustavo Albin is trying to hammer out differences on the issue of national legislation measures to ensure that Article I applies anywhere in the states parties' respective territories, or under their jurisdiction or control, so as to prevent biological agents and toxins' use for purposes contrary to the Convention. There are a large number of proposals for inclusion in the Final Declaration under Article IV, particularly by western countries, including the EU, Canada and Switzerland and the United States. Under Albin's draft of Tuesday evening, states parties are expected to note measures, such as the adoption of penal legislation, that countries have already taken, and to encourage those who have not yet done so to follow suit "immediately". There is also a paragraph on terrorism, encouraging countries to take measures to ensure that suspected or known terrorist organisations or groups would be prohibited and prevented from acquiring agents and toxins, and to explore possible guidelines for national penal legislation. The Conference is expected to stress the importance of measures on physical protection, education on the provisions of the BWC and the Geneva Protocol, and codes of conduct for the scientific community. Recommended national legislation measures would include the requirement to report the possession of dangerous agents, enforcement of regulatory measures on transfers and physical protection, legal assistance in criminal investigations related to BW, and enhancement of capabilities to prosecute and extradite individuals involved with BW offences. The Conference would also call on states parties to negotiate regional or international legal agreements to prevent, criminalise and eliminate terrorist crimes. Ambassador Albin is currently working to get agreement on differences on a number of issues, thought to concern mainly the references to extradition and terrorism, and in general, the question of how specific the Final Declaration should be on penal legislation - an issue which many countries consider having implications on their sovereignty.

Volker Beck of Germany reported that delegates were close to agreement on the Conference's recommendations and decisions on safety under Articles II, III, IV and X. In a compromise proposal, Germany foresees the Conference stressing the importance of taking all necessary safety precautions to protect populations and the environment, noting with interest the provisions of the Cartagena Biosafety Protocol and calling on states parties to adopt national regulations on the protection, handling and transfer of dangerous agents and toxins. Those states parties which had not yet adopted national guidelines for genetic engineering would be encouraged to do so. The United States reportedly has reservations on language underlining the importance of the Rio Declaration and Agenda 21, adopted at the UN Conference on Environment and Development, and the Convention on Biological Diversity, as well as a reference welcoming the Biosafety Protocol to that Convention.

India's Ambassador, Rakesh Sood, who has been facilitating the discussions on investigations, reportedly told the Committee on Tuesday that more time was needed to reach agreement on the proposals he had circulated.

Brazil needed more time to conclude its consultations on cooperation issues. Frederico Duqueu Estrada Meyer is believed to have produced a preliminary paper on Wednesday, December 5, based largely on old language from the 1996 Declaration and new proposals from Australia, Italy, France, the European Union (EU) and the Non-Aligned Movement (NAM). At the behest of the NAM, the paper contains large sections of text from the AHG composite text. Brazil has proposed compromise on the vexed issue of a Cooperation Committee, which the NAM is calling for but which western delegations dislike. Instead of calling for the establishment of such a body, Brazil is suggesting a forum for consultation and creation of opportunities for cooperation on matters related to the promotion of scientific and technological exchange and to review the implementation of Article X. A US proposal to recognise the danger of cooperating with terrorist organisations is not included in the paper, and it remains to be seen whether Washington will yet argue for its inclusion in the Final Declaration. Some NAM countries, however, feel that Article X is not the appropriate place for references to terrorism.

The problematic issue of biological agent and toxins and equipment transfer is being handled by Ambassador Akram, who has circulated an informal seven-paragraph paper drawing on proposals from the EU, South Africa and the United States. On the basis of this paper, the Conference would recognise the continuing importance of Article III, noting the concrete measures countries have taken to give effect to their undertakings, and stressing that transfers should be authorised only for purposes not prohibited by the Convention. As in 1996, it adds, however, that the provisions of Article III should not be used to impose restrictions on legitimate transfers. To reflect current concerns, countries would be urged to take measures to prevent and respond to any violations by individuals or sub-national groups of their export control regulations, including making such attempted or actual transgressions a crime. States parties would further stress that any recipients, "including terrorists or terrorist groups, must be prevented from acquiring, through transfers", any agents, toxins, weapons, equipment, delivery means and information related to the development of biological weapons. Discussions on this paragraph have been complicated, so it is expected that this language will be further elaborated. However, the most problematic transfer text in on the highly sensitive issue of export controls. Drawing from various proposals by Brazil, the EU and a group of 'hardline' NAM countries, Ambbasador Akram's proposal would encourage states parties to consider ways to enhance states parties to enhance the implementation of Article III, "including elaboration of a set of common principles encompassing, inter alia, resolution of differences between states parties in the field of export controls". Countries in the Western Group who belong to the Australia Group (an informal export controls arrangement) in particular have trouble with the formulation. More specifically, the United States for instance has proposed the deletion of the EU proposal on a set of common principles on export controls (which the EU, though, wanted to be applied on a voluntary basis). Brazil and China are said to agree on the deletion, but only if this concept is placed under another Article.

The issue which many delegations regard as crucial - the future of the AHG and the follow-up to the Review Conference - is being handled by the Conference President and AHG Chair, Ambassador Tóth, who reportedly prepared a compromise proposal on Tuesday evening. His proposal is believed to have the chance of enjoying widespread support. Tóth's proposal is said to resemble the EU's proposal tabled on Monday evening, December 3. Under Article XII (review), it is proposing that, beginning in 2002, states parties meet annually "to explore further means and mechanisms to strengthen the Convention" prior to the next Review Conference in 2006. It also wants states parties to decide at their first annual meeting to establish "open-ended governmental expert groups to examine and elaborate on further means and mechanism to strengthen the Convention based on, inter alia, decisions agreed at the Fifth Review Conference, as stated in Article I, III, IV, V, VI, VII and X, and additional measures if states parties so decide". The EU is further proposing that the Final Declaration urge the President of the Review Conference, "in due time before the annual meeting of states parties in 2002 and in informal open-ended meetings, to facilitate the implementation of, inter alia, decisions agreed on at the Review Conference...and to explore additional measures to further strengthen the Convention". The EU proposal has generally received a good reaction, with many regarding it as an honest attempt to find common ground and give a short-term boost to the Convention. Some countries, however, including China, Cuba and Libya, have complained that the proposal makes no mention of the AHG. Although South Africa, the coordinator of the NAM, has reportedly reiterated the Movement's position by referring to the Cartagena Declaration of 14 November, 2000, it is still unclear whether the NAM as a whole will adopt a position on the EU proposal. This may be difficult, as some 'moderate' NAM states, including Chile and Brazil, while supporting the general NAM position, have broken ranks to support the EU's ideas as realistic and viable. The United States, which has tabled its own proposal under Article XII (see BWC Rev.Con. Bulletin, November 30, 2001), has been reserved in expressing its stance on the European suggestions; it is understood, however, to be 'on guard', resisting the establishment of the expert groups for fear they might reopen an avenue for continuing Protocol negotiations.

With many outstanding issues still remaining, the Facilitators were given more time, until Wednesday mid-day, to wrap up their consultations. Ambassador Akram is expected to bring out his first comprehensive draft of the Final Declaration shortly thereafter.

As rumoured earlier, US Undersecretary of State for Arms Control and International Security John Bolton, who delivered the US delegation's dramatic opening statement to the Conference (see BWC Rev.Con. Bulletin, November 19, 2001), arrived back to Geneva on Tuesday, doubtless to add political weight to the delegation during the final days of deliberations. Whether this will translate into more or less flexibility on the part of the American delegation is not yet clear. But it is clear that the issue of non-compliance will be of great interest to Bolton at the Conference. Although non-compliance has been on the sidelines in recent days, Bolton's visit may bring the issue back to the surface; certainly, his 'warming up' of the international press on Tuesday - explaining why the United States considers compliance a priority issue - suggests the US is sharpening its debating and negotiating skills for the endgame.

Jenni Rissanen is the Acronym Institute's analyst monitoring the BWC AHG Protocol negotiations in Geneva. She is attending the BWC Review Conference.

© 2001 The Acronym Institute.