Disarmament Diplomacy

The Emerging Protocol to the Biological and Toxin Weapons Convention

By Jez Littlewood

Introduction

In 1991 at the Third Review Conference of the Biological and Toxin Weapons Convention (BTWC) a group of governmental experts was established "to identify and examine potential verification measures from a scientific and technical standpoint" (1) to strengthen the Convention Nearly five years ago, in September 1994, a Special Conference of the States Parties to the BTWC accepted the report of this so-called VEREX group and established an Ad Hoc Group with the mandate "to consider appropriate measures, including possible verification measures, and draft proposals to strengthen the Convention, to be included in a legally binding instrument, to be submitted for the consideration of the States Parties ." (2)

The Ad Hoc Group (AHG) was set an original target for completion of the legally binding instrument by the Fourth Review Conference of the BTWC, autumn 1996. At the Fourth Review Conference the States Parties welcomed the agreement of the AHG "...to intensify its work with a view to completing it as soon as possible and before the commencement of the Fifth Review Conference..." in 2001. (3) Furthermore, a number of high-level statements were made calling for the completion of the work of the AHG by the end of 1998. (4)

This article covers the period up to the end of the thirteenth session, 4-22 January 1999, although to date, April 1999, there have been fourteen sessions of the AHG, totalling slightly over thirty-three weeks of negotiations. The last, fourteenth, session was held from 29 March-9 April 1999, and a further three sessions are scheduled during 1999: 28 June-23 July; 13 September-8 October; and for the seventeenth session to be held in the period of 22 November-10 December, without prejudice to the actual length of that session. (5) It is, therefore, timely to consider the progress of the AHG to date and the emerging structure of the Protocol.

The Work of the Ad Hoc Group, 1995-1998

In the four-year period from January 1995 to December 1998 the work of the AHG can essentially be divided into two periods: the first from January 1995 to July 1997, where the AHG started by considering various measures that might be included in a legally binding instrument; the second from August 1997 to date, following the move at the seventh session of the AHG to a rolling text of the Protocol. From the seventh session the rolling text formed the basis of negotiations. In order to understand the current negotiations it is necessary to review how the rolling text emerged from these early discussions. However, from the very beginning of the negotiations it was clear what the main areas of consideration would be. Indeed, such areas were specifically reflected in the mandate whereby the AHG should consider, inter alia: (6)

• Definitions of terms and objective criteria, such as lists of bacteriological (biological) agents and toxins, their threshold quantities, as well as equipment and types of activities, where relevant for specific measures designed to strengthen the Convention;
• The incorporation of existing and further enhanced confidence building and transparency measures, as appropriate, into the regime;
• A system of measures to promote compliance with the Convention, including, as appropriate, measures identified, examined and evaluated in the VEREX Report. Such measures should apply to all relevant facilities and activities, be reliable, cost effective, non-discriminatory and as non-intrusive as possible, consistent with the effective implementation of the system and should not lead to abuse;
• Specific measures designed to ensure effective and full implementation of Article X, which also avoid any restrictions incompatible with the obligations undertaken under the Convention, noting that the provisions of the Convention should not be used to impose restrictions and/or limitations on the transfer for purposes consistent with the objectives and the provisions of the Convention of scientific knowledge, technology, equipment and materials.

As in other negotiations delegations submitted Working Papers (WPs) which addressed particular issues. Additionally, up to the end of the sixth session of the AHG the Friend of the Chair papers reflected the results of discussions in their respective areas. Many of these discussions were conceptual in nature rather than concentrating on producing specific language that could readily be incorporated into the legally binding instrument. Furthermore, existing arms control verification procedures provided a broad conceptual framework for the negotiations. Of great relevance to the AHG was the recently completed Chemical Weapons Convention (CWC) which included verification provisions based upon three pillars: mandatory declarations, on-site inspections to verify the accuracy of such declarations, challenge inspections for concerns related to non-compliance. (7)

A number of themes can be identified from the early sessions of the AHG prior to the transition to a rolling text in August 1997. In the area of Compliance Measures the initial discussions identified a purpose for 'declarations' which would "help strengthen compliance with the Convention by increasing transparency and thus helping to avoid false suspicions of non-compliance." (8) Within this context, "[S]tates could be required to declare activities/facilities/programmes of clear relevance to the objective of strengthening compliance..." while avoiding the inclusion of irrelevant material in such declarations and taking into account national security and confidential proprietary information concerns. (9) The next step was then to consider which activities/facilities/programmes would need to be declared. That is to say what activities could 'trigger' a declaration. Any trigger would need to be precise enough to avoid ambiguity of interpretation of what should be declared while simultaneously avoiding the capture of activities not relevant to the Convention. The difficulty in achieving this aim can be illustrated by the example of high biological containment (Biosafety Level 3). This is detailed in the 1993 WHO Biosafety Manual although such levels of containment are not universally reflected in national practice. An ambiguous Biosafety Level 3 trigger might capture too many facilities of little relevance to the Convention and not capture those of most relevance. Alternatively, other specific triggers might capture relevant facilities containing Biosafety Level 3 facilities. Thus we see the beginning of the concept of combination triggers targeted to catch the most relevant facilities. (10)

The 10-21 July 1995, second session, report of the FOC for Compliance Measures noted that on-site measures considered by VEREX included interviewing, visual inspection, identification of key equipment, sampling and identification, and auditing and that "[t]hese measures would presumably be implemented in the context of visits to a site." (11) The same report further noted that the following broad types of visits/inspections were suggested: validation/information visits relating to accuracy of declarations, active demonstrations of compliance and enhancing the credibility of declarations; routine visits/inspections to demonstrate compliance at specific declared facilities; and short notice visits/challenge inspections to investigate a specific compliance concern at declared or undeclared facilities. (12) The visits/inspections identified above were subsequently elaborated as being non-challenge visits. It was recognised that a balance had to be struck between the benefits of non-challenge visits and the costs incurred by such activities.

Although the AHG noted the existing provisions of Article V of the Convention, the ability to conduct investigations of alleged use of biological weapons was considered to be a central pillar of any system of mechanisms to strengthen the Convention. It was also recognised that existing procedures in the CWC's verification annex might be relevant as a model for the BW context. The key principle was for an agreed specific procedure whereby a State Party could request an investigation although, clearly, the requesting State Party would have to substantiate its non-compliance concern. (13)

In the area of Definitions of Terms and Objective Criteria a list of human, animal, and plant pathogens and toxins was developed which might be of relevance to implementing any legally binding instrument. This group also has developed specific language for definitions of terms, a list of relevant equipment and considered the issue of threshold quantities of agents and toxins.

The early reports of the FOC for Measures Related to Article X (of the Convention) had noted the following relevant issues: the relative simplicity and world-wide diffusion of technologies potentially relevant for BW; the important civilian applications of most of the relevant equipment, technologies and agents; the large number of facilities, activities and equipment which have potential BW application and could probably not be excluded from the scope of the compliance measures; the fact that for a great number of countries biological disarmament and non-proliferation are considered a low-priority, especially if compared to public health problems which sometimes compete for the same resources. (14) With these considerations in mind the group identified possible measures worthy of further consideration. There was also discussion of the relationship of Article X to other articles in the Convention including Articles III, IV, and V and the existence of export controls on dual-use items. A background non-paper by the FOC, included in the procedural report of the fifth session, on export licensing procedures noted that: "BTWC Review Conferences have operated under the assumption that the enactment of export controls compatible with the Convention is one of the measures to be taken under Article IV within areas of national jurisdiction. The question arises thence on how to ensure that such measures are fully compatible with the Convention and, in particular, with Article X." (15)

It is clear from the early documents that the AHG fully appreciates the complexity of the task it had been set by the States Parties and recognises that achieving the right balance of strengthening the Convention without impinging on the legitimate activities of States and industry would be challenging and require detailed negotiation and the exploration of all options appropriate to the mandate of the AHG. The fifth session, 16-27 September 1996, preceded the Fourth Review Conference and the procedural report detailed the progress to date. It noted the "...significant progress towards fulfilling the mandate...by identifying a preliminary framework and elaborating potential basic elements of a legally-binding instrument to strengthen the Convention." (16) At this session the AHG agreed to intensify its work with the aim of completing the Protocol before the Fifth Review Conference. At the sixth session of the AHG, 3-21 March 1997, the one-page outline of "Possible structural elements of a Protocol to the BWC" (17) was the most important development, contained in Annex II of the procedural report. This 'Protocol' included 22 articles and 7 annexes. At the beginning of the seventh session the first draft rolling text of the future protocol, BWC/AD HOC GROUP/35, was presented to the AHG by the Chairman. After further discussion BWC/AD HOC GROUP/35/Rev.1 was circulated, the main difference being the inclusion of 'Definitions' as a discrete article in the text rather than as an inclusion in the annex section.

The seventh session procedural report of the AHG, BWC/AD HOC GROUP/36, dated 4 August 1997 annexed the next version of the rolling text. Article II was entitled Definitions and included twenty definitions in the text. In Article III, Compliance Measures, there was inter alia provision for Declarations and Visits and Investigations. The eighth session saw the appointment of two new FOCs, for Confidentiality issues and for National Implementation and Assistance. At the ninth session, 5-23 January 1998, a new FOC for Legal issues was appointed, while at the twelfth session, 14 September-9 October 1998, new FOCs were appointed for the Preamble and the Seat of the Organization. During the tenth, 9-13 March, eleventh, 22 June-10 July, and twelfth, 14 September-9 October, sessions the rolling text continued to be expanded and developed. As an illustration of this we can note that the first version of the rolling text was 164 pages in length. By the end of the twelfth session and the sixth full version of the rolling text, the text was 275 pages.

The continued 'growth' of the text, by the addition of new language, could be interpreted as indicating that the AHG was not making progress. Such an interpretation would miss the underlying difficulty of the task facing the AHG. Delegations were clearly exploring all possibilities, an example of this being the four alternative definitions in Article II relating to Biosafety Level 3 by the end of the twelfth session. It is also important to note that it has been reported (18) that not all delegations had clear instructions from their governments in the early period of the AHG, and thus progress had been stymied by the inability of some delegations to actively participate from the beginning of the negotiations.

Included in the procedural report of the twelfth session, as Annex IV, were proposals for future consideration from the Chairman and the Friends of the Chair, indicating in a transparent way (using strikeout for text to be deleted and bold text for proposed additions) possible new language to take forward areas of the rolling text where consensus language had yet to be agreed. (19) These proposals were without prejudice to the positions of delegations. The Investigations Annex FOC identified issues likely to take longer to resolve: the characterisation of the Technical [Secretariat] [Body]; Privileges and Immunities; Confidentiality; Access and Conduct of Investigations involving States other than the State Party to be investigated; National Authority; Approved investigation equipment; Initiation of an investigation; and the name of [Field] investigations [of alleged use of biological weapons]. (20) The Annex IV paper from the FOC for Compliance Measures proposed that in Article III, section D, subsection II, 'Follow-up after submission of Declarations' consideration be given to language pertaining to: random visits limited to confirming that declarations are consistent with the obligations of the Protocol; clarification visits might become clarification procedures to deal with anomalies and/or clarifications, whereby the Technical [Secretariat] [Body] would seek clarification from the State Party concerned in writing and clarification visits would be a last resort. Voluntary visits might become Voluntary Request visits. (21)

Progress at the 13th session of the AHG, January 1999

During the thirteenth session, Article II, Definitions, saw the insertion of 'categories' within the Definitions:"[Category I: for the purposes of this Protocol.] [Category II: [Definitions to be inserted in] [For the purposes of] Article III [, Section D on Declarations]:] Category III." (22) A total of forty definitions were included in the rolling text, although it should be noted that some definitions appeared in more than one category. Those definitions that included alternative language were the focus of the discussions during this session. For example, Biosafety Level 3 which previously contained four options was reduced to two alternatives at the thirteenth session. Two previous separate definitions, the former Closed System and Primary Production containment, are now one single definition in a single paragraph, albeit still in overall square brackets. A significant number of other definitions were also reduced into one paragraph which, one expects, will form the basis of future negotiations.

In the Compliance Measures section, Article III, section D, subsection II 'Follow-up after the submission of Declarations' was amended to include provision for [Randomly-selected visits], from [Random visits], [Clarification visits] [Request visits] and [Voluntary visits]. (23) The text on Clarification Procedures and Voluntary Visits was derived from working paper 338 and the alternative language of Declaration Clarification Procedures derived from working paper 347, itself derived from earlier working papers 307, 311, 330 and 336. (24) In Annex A, section II, List of Equipment, under the FOC for Definitions, the list was substantially revised with the alternatives largely deleted and a standardised format adopted by the AHG, thus bringing the relevant elements of the Protocol closer together as an integrated package of measures.

In the Investigations-related text it is clear that there will be provision for [field] investigations [of the alleged use of biological weapons], [facility] investigations [of any other alleged breach of obligations under the provisions of the Convention] and the possibility of provision for [investigations where there is a concern that a transfer has taken place in violation of Article III of the Convention.] While a number of issues remain in this area, as illustrated in the FOC paper from the twelfth session noted above, none object to investigations per se and it is their technical aspects, not their existence, which remains an outstanding issue.

In the area related to Article X the major change related to the removal of the square brackets from the title, which became, "Scientific and Technological Exchange for Peaceful Purposes and Technical Cooperation" having previously been "[Scientific and Technological Exchange for Peaceful Purposes] [Implementation Assistance] and Technical Cooperation. (25)

The procedural report once again included proposals for further consideration in Annex IV, without prejudice to the positions of delegations. The Declarations format included provisions for, Initial Declarations - Past Offensive and Defensive Programmes, and National Legislation and Regulations, and Annual Declarations, which might include: [Current defensive programmes; vaccine production facilities; Maximum biological containment/BL4 facilities; High biological containment/BL3 facilities; work with listed agents and/or toxins; other production facilities; other facilities; transfers; declarations on the implementation of Article X. (26) In relation to the area of visits Annex IV proposed taking forward the language for Randomly-selected Visits to Transparency Visits. (27)

In general, the thirteenth session made good progress. There is a feeling that the AHG has now 'turned the corner' on the negotiations with delegations moving from the addition of new language alternatives to actual negotiation. One clear example of this process is the reduction in the number of alternatives in Article II, Definitions, and in the List of Equipment in Annex A. It is possible to argue that the number of high-level statements throughout 1998 relating to the work of the AHG has now begun to have a positive effect on the delegations and the negotiators of the Protocol. Such high-level pressure and support should be maintained. At the thirteenth session of the AHG Germany, as President of the EU, issued a formal statement on the behalf of the EU and others noting that: (28)

"The European Union therefore considers that the negotiation on a Protocol should continue to be a high priority for the international community in 1999. To this end it will actively promote the work of the Ad Hoc Group, with a view to achieving substantive progress by the end of 1999, so that the Protocol can be adopted by a Special Conference of States Parties in 2000."

Nonetheless, to achieve this target date will require, as Ambassador Gonzalez of Chile noted, "a renewed spirit of commitment and flexibility on the part of all parties involved in this important negotiation." (29)

While the AHG may indeed be entering the final period of its negotiations problems of substance remain in some areas: Definitions, On-site measures, Measures to strengthen the implementation of Article III, Measures Related to Article X. Although a number of delegations currently have footnotes in the text which serve as 'markers' for their respective views, although on the positive side it is clear that delegations are addressing these areas and made significant progress at the thirteenth session to reduce the text to language which should serve as the basis for the future negotiations.

Conclusion

The Ad Hoc Group is now entering its fifth year of negotiations. The initial call for the completion of its work by the latter half of 1996 was clearly optimistic given the task set by the mandate of the States Parties at the Special Conference in 1994. It is clear from analysis of the official documents of the AHG that full consideration has been given to a whole range measures for strengthening the Convention during the thirty-one weeks of negotiations since 1995. The rolling text of the emerging Protocol contains what has been referred to as, "an integrated package of measures which are likely to comprise mandatory declarations together with on-site measures together with measures to strengthen the implementation of other Articles of the BWC..." (30) Following the high-level statements throughout 1998 there is evidence to suggest the thirteenth session marked the turning point from 'setting out positions' to active negotiation and therefore with continued support from the highest levels and the full commitment and flexibility of the delegations the Protocol could be completed by early 2000. The Ad Hoc Group, with the recent completion of the fourteenth session, has 11 weeks of negotiations left in 1999 to achieve that goal.

Notes and References

1.United Nations, (1993) Ad Hoc Group of Governmental Experts to Identify and Examine Potential Verification Measures from a Scientific and Technical Standpoint, Report, BWC/CONF.III/VEREX/9 Geneva.

2. United Nations, (1994) Special Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Final Report, BWC/SPCONF/1 Geneva, 19-30 September.

3. United Nations, (1996) Fourth Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Final Document, BWC/CONF.IV/9, Geneva, 25 November-6 December.

4. During 1998 a number of statements were made by very senior members of a number of governments, including President Clinton of the United States, January 1998, and the Common Position adopted by the European Union, which stated that EU member States, "…shall actively promote decisive progress in the work of the ad hoc Group, with a view to concluding the syubstantive negotiations by the end of 1999." (BWC/AD HOC GROUP.WP.272, 9 March 1998). A comprehensive list of the range of statements made in support of completing the negotiations is contained in, Pearson, Graham S, (1998) 'The Protocol to Strengthen the BTWC: An Integrated Regime', Politics and the Life Sciences, Volume 17, Number 2, September. Page 190.

5. United Nations, (1998) Ad Hoc Group of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Procedural Report, BWC/AD HOC GROUP/43 (Part I) Geneva, 14 September-9 October. (Hereinafter referred to as "Ad Hoc Group" and the appropriate document number and date)

6. United Nations, Special Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Final Report, BWC/SPCONF/1 Geneva, 19-30 September 1994.

7. Perry Robinson, J P, Stock, Thomas, and Sutherland, Ronald G, (1994), 'The Chemical Weapons Convention: the success of chemical disarmament', SIPRI Yearbook 1993.

8. United Nations, (1995) Ad Hoc Group, BWC/AD HOC GROUP/28, Geneva, 10-21 July.

9. Ibid.

10. United Nations, (1995) Ad Hoc Group, BWC/AD HOC GROUP/29, Geneva, 27 November-8 December.

11. United Nations, (1995) Ad Hoc Group, BWC/AD HOC GROUP/28, Geneva, 10-21 July.

12. Ibid.

13. United Nations, (1995) Ad Hoc Group, BWC/AD HOC GROUP/29, Geneva, 27 November-8 December.

14. United Nations, (1996) Ad Hoc Group, BWC/AD HOC GROUP/31, Geneva, 15-26 July.

15. United Nations, (1996) Ad Hoc Group, BWC/AD HOC GROUP/32, Geneva, 16-27 September.

16. Ibid.

17. United Nations, (1997) Ad Hoc Group, BWC/AD HOC GROUP/34, Geneva, 3-21 March.

18. Tucker, Jonathan B., 'Strengthening the BWC: Moving Toward a Compliance Protocol', Arms Control Today, January/February 1998.

19. United Nations, (1998) Ad Hoc Group, BWC/AD HOC GROUP/43 (Part II), Geneva, 14 September-9 October.

20. Ibid.

21. Ibid.

22. United Nations, (1999) Ad Hoc Group, BWC/AD HOC GROUP/44 (Part I), Geneva, 4-22 January.

23. Ibid.

24. Ibid., see footnotes 59 and 61.

25. Ibid., see Article VII. The title of Article VII was changed at the tenth session of the AHG from "Scientific and Technological Exchange for Peaceful Purposes and Technical Cooperation" to "[Scientific and Technological Exchange for Peaceful Purposes] [Implementation Assistance] and Technical Cooperation" which caused considerable consternation among many of the developing States and resulted in a statement from the Non-Aligned Movement and Other Countries on 13 March 1998 expressing "...their concerns at attempts to reduce the scope and importance of issues related to Article X of the Convention...".

26. See Annex IV of BWC/AD HOC GROUP/44 (Part II) pp 3-19.

27. United Nations, (1999) Ad Hoc Group BWC/AD HOC GROUP/44 (Part II) pp 20-32.

28. Declaration by the Presidency on behalf of the European Union on the Negotiations of a Protocol to the Biological and Toxin Weapons Convention (BTWC). 20 January 1999.

29. Ambassador Raimundo Gonzalez (Director of the Division of Special Policies, Chilean Ministry of Foreign Affairs), "Statement at the 13th Meeting of the Ad Hoc Group of States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction." 20 January 1999.

30. Pearson, Graham S, (1998) Progress at the Ad Hoc Group in Geneva, Quarterly Review Number 2, Chemical and Biological Weapons Convention Bulletin Issue 39, March 1998. The author accessed this report via the word wide web at http://www.brad.ac.uk/acad/sbtwc/prgeneva/prgen2.htm.

Jez Littlewood is a Ph.D student at the Department of Peace Studies, University of Bradford, UK.

© 1999 The Acronym Institute.

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