Disarmament Diplomacy

The BTWC Protocol Enters the Endgame
By Graham S. Pearson

Introduction

The ongoing negotiations in Geneva by the Ad Hoc Group (AHG) of the States Parties to the Biological and Toxin Weapons Convention (BTWC) of a legally-binding instrument to strengthen the Convention have quickened their pace as they have entered the endgame. 1999 will see no less than five sessions of negotiation, totalling some 15 weeks, and it is apparent that there is a real impetus by many of the negotiators to complete the negotiations within the next 12 months.

The negotiations began in 1995 and successfully transitioned in July 1997 to the consideration of a rolling text of the Protocol (1). In deciding to establish the AHG, the 1994 Special Conference (2) "determined to strengthen the effectiveness and improve the implementation of the Convention." [Emphasis added] Consequently, the mandate for the AHG was "to consider appropriate measures, including possible verification measures, and draft proposals to strengthen the Convention, to be included, as appropriate, in a legally binding instrument..."

At the most recent session, the fifteenth, for four weeks from 28 June to 23 July 1999 there was clear evidence of the quickening pace of developments. On the second day of the session, State Secretary Wolfgang Ischinger of Germany made a statement on behalf of the German Presidency of the European Union. This encouraged all Ad Hoc Group participants by saying "Let us therefore double our efforts to strengthen the BTWC by concluding the negotiations on the Protocol in order to give the Convention the necessary 'teeth'." He then went on to present the EU Common Position, agreed on 17 May 1999, which he said "is intended to give this endeavour the EU's strongest support." The Common Position (3) urged "the conclusion of the negotiations...on a legally binding protocol establishing a verification and compliance regime that will effectively strengthen the BTWC Convention. In order to achieve this, it is imperative to complete all the stages necessary for the adoption of the Protocol by a special conference of States Parties in 2000." It then set out the following measures as being "both central to, and essential for, an effective Protocol...:

• declarations of a range of facilities and activities relevant to the Convention, inter alia so as to enhance transparency,
• effective follow-up to these declarations in the form of visits, on the basis of appropriate mechanisms of random selection, so as to ensure transparency of declared facilities and activities, promote accuracy of declarations, and ensure fulfilment of declaration obligations in order to ensure further compliance with the Protocol,
• appropriate clarification procedures supplemented, if need be, by on-site activities whenever there is an anomaly, ambiguity or omission in a declaration submitted by a State Party... Appropriate clarification procedures shall also be followed whenever a facility meeting the criteria for declaration ought to have been declared but was not.
• provision for rapid and effective investigations into concerns over non-compliance, including both facility and field investigations,
• establishment of a cost-effective and independent organisation, including a small permanent staff, capable of implementing the Protocol effectively.
• provision for specific measures in the context of Article 7 of the Protocol in order to further international cooperation and exchanges in the field of biotechnology. Such measures shall include assistance to promote the Protocol's implementation."

This EU policy statement had been officially endorsed by 28 European Countries: the 15 EU member states and the associated and other States. The Presidency statement ended with a warning that it is important to make progress now by saying that: "we firmly believe that unless we can achieve decisive progress now, we might risk stagnation or even retrogression. I believe that, all in all, the glass is more than half full and that we have grounds for optimism. By adopting this Common Position the EU has renewed its commitment to, and expresses its firm belief in, the success of these negotiations." This clear political will was reflected in the statements, attitudes and suggestions of other States. Taken together - and in combination with the level of commitment demonstrated to a range of measures, including specific measures to promote international cooperation and exchanges in the field of biotechnology, which had earlier been a point of contention between developed and developing States - they constitute clear and encouraging signs of the quickening pace. It is timely therefore to consider first the maturity of the overall Protocol and then the nature of the regime that is likely to emerge from the endgame and to consider whether it will be successful in meeting the objective in the mandate of strengthening the effectiveness and improving the implementation of the Convention.

The Overall Protocol

The June/July 1999 session of the AHG led to the production of the ninth version of the Protocol (4) - previous versions having been produced in June 1997 (#35), July 1997(#36), October 1997 (#38), February 1998 (#39), June/July 1998 (#41), September/October 1998 (#43), January 1999 (#44) and April 1999 (#45). As had become the practice, Part II of the procedural report (5) contained strikethrough versions of the rolling text prepared by the respective Friends of the Chair (FOC) containing proposed revised text for further consideration. A significant step forward was made in July as the strikethrough version of the text in Part II was for the first time presented in a structured way that paralleled the structure of the Protocol with text for all Articles other than the Preamble and Articles I, VI, VIII and X. In most areas of the Protocol, the Friends of the Chair have had three or four complete readings of the part of the rolling text for which they have responsibility. The last nine months has seen the engagement of all delegations in serious negotiation which is making steady, though slow, progress. An overall appreciation of the current state of progress of the Protocol is summarised below. Page numbers are taken from the July 1999 draft (AHG/46).

Preamble (5 pages): revised July 1999

Article I, General Provisions (1 page): revised July 1999

Article II, [Definitions [and Criteria] (11 pages): revised July 1999

Article III, Compliance Measures (70 pages): revised July 1999

Article IV, Confidentiality Provisions (2 pages): 24 pairs [], revised July 1999

Article V, Measures to Redress a Situation (1 page): 6 pairs [], revised July 1999

Article VI, Assistance (3 pages): 30 pairs [], revised July 1999

Article VII, Technical Cooperation (13 pages): revised July 1999

Article VIII, Confidence-Building Measures (CBMs): no text

Article IX, The Organization (16 pages): revised July 1999

Article X, National Implementation (1 page): 14 pairs [], revised July 1999

Articles XI - XXIII, Legal Issues (14 pages): 49 pairs [], largely agreed, some revised July 1999

Annex A, Declarations (25 pages)

Annex B, Visits (30 pages)

Annex C, Article III measures: no text

Annex D, Investigations (41 pages): largely agreed, some revised July 1999 (no text for Article III investigations)

Annex E, Confidentiality (9 pages): largely agreed, revised July 1999

Annex F, Technical cooperation: no text

Annex G, Confidence-Building Measures (CBMs) (17 pages): unchanged since January 1998

Appendices A to F (42 pages - appendices A to E concerned with declaration formats)

The overall assessment that emerges is that a very great deal has been achieved by the AHG with the Protocol text well developed in a number of areas such as legal issues, confidentiality, organization, national implementation, assistance and Annex D Investigations. Of the 23 Articles of the Protocol, there is text that is close to agreement - and thus free from square brackets - for all but five Articles (I, II, III, VII and VIII). There are three principal areas - Article III Compliance Measures (and its associated Annexes and Appendices), Article VII Technical Cooperation and Article II [Definitions] - where more work remains to be done. Article III Compliance Measures (and its Annexes and Appendices) comprises well over 100 pages of the draft Protocol and thus is much the largest task faced by any of the FOCs. Article VII started to make progress in January and this has continued in April and July 1999 with the recognition that measures to implement Article X of the Convention also contribute to strengthening confidence in compliance. Article II on [Definitions] is the only Article with its title in square brackets and much time and energy has been devoted to arguments about the potential implications of definitions on the Convention. There is much for the AHG focussing first and foremost on the definitions needed to ensure that the measures such as declarations in the Protocol are unambiguous and hence that the obligations placed on States Parties are equable and that information provided to the future BTWC Organization is comparable.

The Emerging Regime

The central elements of the emerging Protocol regime (6) are:

• Declarations of relevant programmes and facilities;
• Follow-up after submission of declarations including randomly-selected/transparency visits, declaration clarification procedures and voluntary visits;
• Measures to ensure submission of declarations;
• Consultation, Clarification and Cooperation;
• Investigations, both Field and Facility;
• Article VII measures to promote technical cooperation;
• together with an "Organization for the Prohibition of Bacteriological (Biological) and Toxin Weapons" (BTWCO) to implement the Protocol.

In addition, there are various other provisions which will all contribute to the strengthening of the Convention and the effective implementation of the Protocol. However, for the purposes of this article attention is focussed on the central elements which are considered in turn.

Declarations of Relevant Programmes and Facilities

The current Protocol has provisions in Article III. "D. Declarations. I. Submission of Declarations" for the following:

"Initial Declarations

[(A) Past Offensive and/or Defensive [Programmes][Activities]

[(B) National Legislation and Regulations

Annual Declarations

[(C) Current Defensive [Programmes][Activities]

(D) Vaccine Production Facilities

(E) [Maximum Biological Containment][(BL-4)][Laboratories][Facilities]

(F) [High Biological Containment][(BL-3)][Laboratories][Facilities]

[(G) Work with Listed Agents and/or Toxins]

[(H) Other Production Facilities]

[(I) Other Facilities]

[(J) Transfers

[(K) Declarations on the Implementation of Article X of the Convention

[Notifications]

[(L) Outbreaks of Disease]"

It is important to note that the architecture of the declaration requirements is designed to ensure that the most relevant facilities are declared and not all possible facilities. A number of surveys of national microbiological activities have been reported to the AHG (7 - 11). Most of the surveys give an indication of the number of facilities which would need to be declared if certain triggers, or combinations of triggers, were to be used to capture those facilities of most relevance to the Convention. The broad conclusion that emerges is that the number of facilities in each country that would need to be declared under triggers chosen to capture those facilities of most relevance to the Convention would be relatively limited with numbers of the order of tens in each country. It is useful here to recall that the Austrian/UK contribution (12) to the EU seminar for the pharmaceutical industry on 13 May 1998 said that "the number of facilities in individual EU countries that would need to be declared can probably measured in tens rather than hundreds." It is clear that numbers in the tens are being considered for most European countries.

It is also clear that no commercial proprietary information will be required for declarations. It was evident from the footnote to the title of Appendix D "Information to be provided in declarations of other facilities" in the July 1998 draft Protocol (13) that neither commercial proprietary information (CPI) or national security information will be required in declarations as the footnote stated that "Declared information will be passed to all States Parties to the Protocol. Accordingly, the design of the declaration formats is intended to avoid reference to confidential proprietary information or national security information..."

This exclusion of commercially sensitive information was also stated in the aforementioned Austrian/UK paper (14) which said that "All are agreed that the forms should be simple and straightforward and should not seek any information which would be considered commercially sensitive." Although the Declaration Appendices have been modified and the footnote no longer appears in the current draft Protocol, it is clear from the formats in the current draft, which are broadly similar to those in the earlier draft which bore the footnote, that the intention to avoid reference to commercial proprietary information or national security information remains.

Follow-up after Submission of Declarations

The whole question of how to ensure that declarations are indeed accurate and complete has been addressed (15) . It was concluded that there was a need for a portfolio of visits, all of which are non-confrontational and non-accusatory, comprising basically three types:

a. Transparency (randomly-selected) visits

b. Declaration clarification visits

c. Voluntary visits - which fall into several categories:

(i) assistance in compiling individual facility and national declarations

(ii) resolution of any ambiguities related to declarations

(iii) furthering the cooperation and assistance provisions of the Protocol

(iv) resolution of a particular concern

The requirement for most of these, apart from transparency visits, can be expected to decrease over time. The Protocol needs to accommodate a flexible portfolio which should realistically accommodate about 100 visits a year based on the probable size of the BTWCO.

Measures to Ensure Submission of Declarations

These are provisions which first appeared in the draft Protocol in July 1999 and reflect the difficulties that the CWC has encountered in receiving declarations that were complete or on time. The report on the implementation of the CWC for the year 1 January to 31 December 1998 (16) noted that "thirty-five of 121 States Parties had still not submitted initial declarations by 31 December [1998]".

The provisions in the BTWC Protocol require the Director-General as soon as possible after the deadline for the submission of initial or annual declarations has passed to issue a written request to States Parties which have not submitted all their declarations and that the Director-General shall report to each session of the Conference of States Parties on the implementation of the declaration obligations. In addition, currently within square brackets, should a State Party not submit its initial or annual declarations within the [6] month period following the relevant deadline, then one or more of the following measures may be applied:

"(a) The State Party shall have no vote in the Conference of States Parties;

(b) The State Party shall not be eligible for election as a member of the Executive Council or, if already a member of the Executive Council, shall be suspended from membership of the Executive Council;

(c) The State party may not invoke the declaration clarification procedure...or a facility investigation;

(d) The State party may not request the Technical [Secretariat][Body] for technical assistance under Article VII other than assistance in the preparation of declarations;

(e) The State party may not have access to the declarations of other States Parties;

(f) The State Party may not invoke those provisions on consultation, clarification and cooperation...;"

Consultation, Clarification and Cooperation

These are provisions to enable States Parties to consult and cooperate "on any matter which may be raised relating to the object and purpose of the Convention, or the implementation of the provisions of this Protocol and to clarify and resolve any matter which may cause concern about possible non-compliance with the [basic] obligations of this Protocol or the Convention." It sets out a number of procedures for seeking clarification which States Parties may follow prior to the submission of any request for an investigation.

Investigations, both Field and Facility

The Protocol contains detailed procedures for the initiation and carrying out of investigations:

"[(a) Investigations to be carried out in geographic areas where the [release of, or] exposure of humans, animals or plants to microbial or other agents and/or toxins has given rise to a concern about a possible [non-compliance under Article I of the Convention][use of biological weapons], hereinafter referred to as "Field investigations".]

(b) Investigations of alleged breaches of obligations under Article I of the Convention, to be conducted inside the perimeter of a particular facility(ies) at which there is a substantiated concern that it is involved in activities prohibited by Article I of the Convention, hereinafter referred to as "facility investigations"."

Article VII Measures to Promote Technical Cooperation

A number of measures are being elaborated in the Protocol with the aim of achieving the full and effective implementation of Article X of the Convention. The extent to which such activities would be appropriate and well suited to the future BTWC Organization as well as the contributions that they would make to building confidence in compliance and to promoting universal accession to the Protocol have been considered elsewhere (17). It was concluded that it is already clear from the existing text of Article VII that the Protocol has moved well beyond what is in the CWC and consequently that the Protocol should already contain elements that will help to promote its universality to all States.

An Overall Evaluation of the BTWC Protocol Regime

It is now informative to evaluate the BTWC Protocol Regime using criteria derived from the central requirement for a "system of measures to promote compliance with the Convention" - a system which, under the mandate, has to meet the requirement that "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." The criteria thus arrived at are:

• Increased transparency
• Enhanced confidence in compliance
• Applicability (to all relevant facilities and activities)
• Acceptability (burden, avoidance of negative impact, protection of commercial proprietary informations and national security needs)
• Reliability
• Cost-effectiveness
• Potential for abuse
• Deterrence of non-compliance
• Promotion of universality

As it is widely accepted that of all the arms control regimes, the Chemical Weapons Convention (CWC) regime (18) is that of the closest relevance to the emerging Protocol regime, the CWC regime is used as a comparative baseline in this evaluation. Although there is general acceptance that the CWC regime is that of closest relevance, it has been suggested by some that the BTWC is "orders of magnitude more difficult to monitor than nuclear, chemical or conventional arms control accords."(19) Is this really so? Biological weapons are most closely related to chemical weapons in their method of attack - the inhalation of material. Consequently, the delivery means used for biological and chemical weapons are similar, even though the quantities needed for a biological weapons attack is significantly smaller than for a chemical weapons attack. The view that there are orders of magnitude difference between the task facing those monitoring the strengthened BTWC Protocol and the CWC suggests that the dual-use problem in regard to biotechnology is different in kind from that in regard to chemical technology. More detailed analysis shows that this generalization is incorrect. (20)

In reality, the problem of verification of the BTWC is directly analogous to that of the CWC. Although the CWC does list chemicals in Schedules and links the strictness of monitoring to the Schedules, there are many chemicals that could be used as chemical weapons that are not listed on the Schedules.(21) This is particularly true if assumptions such as the need for stability and a reasonable storage life are dropped. The CWC (Article VI. 2) requires each State Party to "adopt the necessary measures to ensure that toxic chemicals and their precursors are only developed, produced, otherwise acquired, retained, transferred or used within its territory or in any other place under its jurisdiction for purposes not prohibited under this Convention." Only in regard to the chemicals listed in the schedules of the CWC Annex on Chemicals does the CWC go on to specify how this is to be implemented. However, it is left for individual States Parties to decide what the "necessary measures" should be for the huge multitude of unscheduled chemicals (including toxins and other toxic biotechnological-process products) also subject to the Art VI.2 provision in accordance with what has come to be called its "general purpose criterion". (22)

As the CWC Annex on Chemicals states in the first paragraph of Section B: "For the purpose of implementing this Convention, these Schedules identify chemicals for the application of verification measures according to the provisions of the Verification Annex. Pursuant to Article II, subparagraph 1 (a), these Schedules do not constitute a definition of chemical weapons."[Emphasis added] It is thus clear that the lists of chemicals in the CWC Schedules are not, and cannot be, comprehensive lists - and the parallel will be equally true of any lists of biological agents and toxins in the emerging BTWC Protocol. It has therefore to be appreciated that in both the CWC and the BTWC Protocol regimes, other toxic or infectious materials, produced in a facility that is not within the scope of the required declarations, may be utilized in a breach of the regime. Verification, confidence and trust does not come about in the CWC regime because all relevant items are monitored - and the same will be the case under the BTWC Protocol regime.

How do the two Protocol regime fare when judged against our criteria?

Mandatory Declarations

Mandatory declarations under the CWC can certainly be assessed as having provided increased transparency, and have also enhanced confidence in compliance. Their applicability is, however, limited to those facilities that are required to be declared. Their acceptability must be regarded only as moderate as some declarations are classified as containing CPI and a significant number of declarations are needed - several hundred - for a developed country, in contrast to the tens of declarations envisaged for the BTWC Protocol. Their reliability is poor, as the experience of the Organization for the Prohibition of Chemical Weapons (OPCW) has shown that a number of States Parties have been distinctly dilatory in submitting their declarations. The cost effectiveness is moderate because of the number of declarations and the need to ensure protection of the information within the declarations. The potential for abuse is also moderate, as the mandatory declarations for the OPCW in isolation have no elaborated declarations follow-up or declaration clarification procedures. Likewise the deterrence of non-compliance through declarations in isolation is moderate. Finally, the promotion of universality has to be assessed as low, primarily because of the burden associated with the large numbers of declarations and the detailed information required which has been judged as requiring protection.

The comparable evaluation for mandatory declarations in the BTWC Protocol regime is broadly similar. They also provide increased transparency and confidence in compliance. Their applicability is likewise limited to those facilities which will require to be declared. Their acceptability is high, as no CPI will be required and their number is modest - of the order of tens in a developed country. Their reliability is assessed as poor - based on the BTWC CBM experience - to good as their reliability has the potential to increase both through the declaration follow-up procedures and through the measures to ensure that declarations are submitted. Their cost-effectiveness is high, as the numbers required are significantly less than for the CWC, no CPI is required and the burden is consequently significantly less, although the benefit to the regime is high as the most relevant facilities will be declared. The potential for abuse is moderate as the number of facilities requiring to be declared will be small, and consequently other relevant facilities will not be declared. Likewise, the deterrence of non-compliance through declarations in isolation is seen as moderate. Finally, the promotion of universality can be rated as low to moderate primarily because of the burden associated with the provision of declarations.

Routine Inspections/Declaration Follow-Up Procedures

Routine inspections in the CWC are assessed as providing a limited increase in transparency and enhancement of confidence in compliance as routine inspections are only to specific declared parts of facilities. Their applicability is to just those areas specifically declared and their acceptability is high because they are subject to facility agreements. As for reliability this is good - in the specific area. Their cost effectiveness is moderate because of their limited applicability and the effort involved in establishing the facility agreement. Potential for abuse within the specific area declared is low and likewise deterrence of non-compliance is good in the particular areas. Their contribution to overall promotion of the Convention universality is low.

The declaration follow-up procedures of the BTWC Protocol provide a broader range of activities including infrequent randomly-selected visits to declared facilities, declaration clarification procedures which start with written inquiries and may be followed up by consultations and ultimately a visit to clarify the declaration anomaly. In addition, there is provision for voluntary visits both to provide assistance in the implementation of the Protocol and to facilitate international cooperation for peaceful purposes.

These procedures increase transparency and, because of their integrated nature, enhance confidence in compliance. Voluntary visits have less to contribute as, by their nature, they will only be to sites offered by a State Party. Insofar as applicability is concerned, the randomly-selected visits will be to declared facilities whilst the declaration clarification procedures are broader as they include facilities that should have been declared. Acceptability should be high as there will be no requirement for disclosure of commercial proprietary information as all visits will be according to the mandate for the specific visit and be non-confrontational and non-accusatory. Reliability is high because although visits will be infrequent they will ensure that declarations are both accurate and complete. Consequently cost-effectiveness is high. Potential for abuse is low because of the limitations of the mandate for such visits. Deterrence of non-compliance is good because States Parties will be unlikely to utilise declared facilities - or facilities that should be declared - for proscribed activities. Promotion of the Protocol universality is moderate because of the provision to extend randomly-selected visits to provide technical assistance.

Measures to Ensure Submission of Declarations

The CWC has no such provisions and the BTWC Protocol will benefit from such measures as it has become very clear from the OPCW experience that many States Parties have been dilatory in providing both initial and complete declarations. The Protocol measures will increase transparency and confidence in compliance. Applicability and acceptability are both positive as these measures ensure uniformity of obligations on States Parties. Their reliability depends on the political will to impose penalties on delinquent States Parties. Cost-effectiveness is high, potential for abuse low and the deterrence of non-compliance is good because the measures and penalties are specified. They also help to promote universality as they ensure equality of obligations.

Challenge Inspections/Investigations

These contribute to increased transparency in the area inspected and to enhanced confidence in compliance. Their applicability is very broad as no areas are excluded. Their acceptability is positive because the procedures for initiation and for the prevention of abuse are such that there should be no frivolous or abusive requests. Their reliability is, however, moderate as this depends on a State Party initiating a request for a challenge inspection. Cost-effectiveness is good, whilst the potential for abuse is low - because of the severe penalties for abusive requests. The contribution to deterrence of non-compliance is high as this is an essential element of an effective regime. Its contribution to the universality of the Convention will be generally seen as low although it does provide States Parties with the assurance that should they be subjected to a possible chemical attack then they can request an investigation thereby helping them to take political action against the perpetrator.

The assessments for the investigations under the BTWC Protocol are essentially the same.

Technical Cooperation and Assistance

Provision is made under the CWC Article XI for assistance to promote economic and technological development. As these are relatively few in number although they have gradually grown since the entry into force of the OPCW, their contribution to increased transparency and to enhanced confidence is low. Their applicability is potentially broad although this depends on the resources allocated to such activities. Their acceptability is high but their reliability is low as they are limited to particular countries and particular activities. Cost-effectiveness is moderate whilst the potential for abuse is low as is the deterrence of non-compliance. Their contribution to universality of the Convention is moderate because of the modest level of these activities.

In contrast, Article VII of the Protocol gives much more attention to technical cooperation and assistance measures and it is clear that these will have a more pronounced role in the BTWC Protocol regime. Their contribution to increased transparency and to enhanced confidence in compliance can therefore be rated as moderate. They are again potentially broad in applicability. Their acceptability is again high and their reliability is low as they are limited to particular countries and particular activities. Their cost-effectiveness is moderate whilst their potential for abuse is low. Their contribution to deterrence of non-compliance is moderate as there will be a broad range of Article VII measures which will contribute to the improved understanding of the future BTWC Organization and of the other States Parties. Their contribution to the promotion of the universality of the Protocol is high because Article VII will include specific actual measures rather than aspirations.

Concluding Remarks

As might be expected, there are both striking similarities and important differences between the CWC and the BTWC Protocol regimes. Both the CWC and the BTWC Protocol regimes are addressing the dual-use nature of the technology and both are addressing prohibitions which are based on general purpose criteria - in the BTWC Protocol regime this is the prohibition in Article I of the BTWC:

"Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:

(1) Microbial or other biological agents, or toxins, whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;

(2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict." [General Purpose Criterion emphasised]

The CWC regime was finalised in the late 1980s whilst the BTWC Protocol regime is currently being finalised - and has benefitted from the experience gained by the OPCW and by States Parties in the implementation of the CWC as well as the other international developments during the past decade. Thus the BTWC Protocol regime has been tailored - and rightly so - to deal with the particular problems associated with compliance of the BTWC which includes the necessity to cope with a situation in which smaller quantities of agent and smaller facilities could be used in a non-compliant activity. However, the experience gained from compliance and verification regimes over the past decade has made it clear that one of the strongest tools in assessing compliance is the consistency of the information that becomes available from many sources.

In a world in which more and more information is being provided on official as well as unofficial websites, it is becoming harder and harder to be confident that proscribed activities can be hidden in such a way that no inconsistencies are evident. In terms of the jigsaw analogy, there is no requirement to have all the pieces of the jigsaw to be confident of compliance so long as all the pieces are clearly from the same picture. It is for this reason that it is vital that the BTWC Protocol regime is a three pillar regime (23) with declarations of which the completeness and accuracy are ensured through declaration follow-up procedures and declaration clarification procedures, infrequent visits as part of these declaration follow-up procedures as well as to implement Protocol Article VII measures, and both field and facility investigations.

The BTWC Protocol regime can thus be considered in the round and compared with the CWC regime. The Protocol declarations will be considerably less onerous than those for the CWC as only tens of facilities will need to be developed in a typical developed country such as those in Europe. No CPI information will be required yet the facilities to be declared will be selected to be those of particular relevance. The provisions for ensuring the submission of declarations have no parallel in the CWC regime and should be effective in ensuring that States Parties to the Protocol comply with their obligations. The declaration follow-up procedures with infrequent randomly-selected/transparency visits will ensure that declarations are accurate with the potential for extension of such visits to provide advice and technical cooperation providing a useful bonus for States Parties. The declaration clarification procedures, ranging from written correspondence through a consultative meeting to, if necessary, a clarification visit, will ensure that declarations are complete and accurate. Both of these are developments from the CWC regime and should ensure that the Protocol regime is more reliable. Investigations are always going to be highly political in nature and consequently extremely rare events. They are, however, vital elements of the overall regime. The specific Protocol provisions for implementation of Article X of the BTWC go far beyond the comparable provisions in the CWC - and will contribute both to the promotion of universality of the Protocol and to the increasing of transparency and the building of confidence in compliance.

All in all, the BTWC Protocol is being crafted so that it will achieve the requirement for an effective and reliable regime which, in accordance with the AHG mandate, will strengthen the effectiveness and improve the implementation of the BTWC and thereby strengthen the norm against biological weapons. Consequently, all involved in the Ad Hoc Group negotiations are encouraged to make a concerted and sustained effort to complete the Protocol within the coming 12 months. After all, everything that is needed for an effective and reliable Protocol is already in the draft text.

Notes and References

1. Littlewood, Jez (1999), 'The Emerging Protocol to the Biological and Toxin Weapons Convention', Disarmament Diplomacy, Issue Number 35, March. pp. 23 -28. 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.

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, 19 - 30 September, Geneva.

3. Official Journal of the European Communities, 'Common Position of 17 May 1999 adopted by the Council on the basis of Article 15 of the Treaty of European Union, relating to progress towards a legally binding Protocol to strengthen compliance with the Biological and Toxin Weapons Convention (BTWC), and with a view to the successful completion of substantive work in the Ad Hoc Group by the end of 1999 (1999/346/CFSP)', L 133, Volume 42, 28 May 1999, p.3.

4. United Nations (1999), Procedural Report of the 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, BWC/AD HOC GROUP/46 (Part I), 30 July, Geneva.

5. United Nations (1999), Procedural Report of the 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, BWC/AD HOC GROUP/46 (Part II), 4 August, Geneva.

6. United Nations (1999), Procedural Report of the 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, BWC/AD HOC GROUP/46, 30 July , Geneva.

7. Canada (1995), Discussion Paper on Declarations: List of Agents and Combinations of Criteria, BWC/AD HOC GROUP/WP. 6, 28 November.

8. The Netherlands (1995), The Relevance and Effectiveness of (Combinations of) Criteria for Declaration, BWC/AD HOC GROUP/WP.10, 28 November.

9. United Kingdom (1996), Survey of Microbiological Facilities in the UK, BWC/AD HOC GROUP/WP. 81, 23 July.

10. Italy (1997), National Survey in the Microbiological Activities, BWC/AD HOC GROUP/WP. 146, 18 March.

11. Denmark, Finland, Iceland, Norway and Sweden (1997), Results of a Facility Declaration Trial in the Five Nordic Countries, BWC/AD HOC GROUP/WP. 173, 18 July.

12. Austria and the United Kingdom (1998), Industry and Declarations, UK Presidency and the European Commission: The BWC and the Pharmaceutical Industry, 13 May.

13. United Nations (1998), Procedural Report of the 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, BWC/AD HOC GROUP/41, 16 July, Geneva.

14. Austria and the United Kingdom, Industry and Declarations, UK Presidency and the European Commission: The BWC and the Pharmaceutical Industry, 13 May 1998, Brussels.

15. Pearson, Graham S. & Dando, Malcolm R. (1999), 'Visits: An Essential and Effective Pillar', Briefing Paper No. 18, University of Bradford, January. Available on http://www.brad.ac.uk/acad/sbtwc

16. Organisation for the Prohibition of Chemical Weapons (1999), Report of the Organisation on the Implementation of the Convention (1 January - 31 December 1998), Conference of States Parties, Fourth Session, 28 June - 2 July 1999, C-IV/5, 2 July.

17. Pearson, Graham S. (1999), 'Article VII Measures: Optimizing the Benefits', Briefing Paper No. 22, University of Bradford, July 1999. Available on http://www.brad.ac.uk/acad/sbtwc

18. United Nations (1994), Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Corrected version in accordance with Depositary Notification C.N.246.1994.Treaties-5 and the corresponding Proces-Verbal of Rectification of the Original of the Convention, issued on 8 April. Available at http://www.opcw.nl/cwc/cwc-eng.htm

19. Smithson, Amy E. (1999), 'Tall Order: Crafting a meaningful Verification Protocol for the Biological Weapons Convention', Politics and Life Sciences, March, in press.

20. Tucker Jonathan B. (1998), 'Verification Provisions of the Chemical Weapons Convention and their Relevance to the Biological Weapons Convention', in Biological Weapons Proliferation: Reasons for Concern, Course for Action, ed. Amy E. Smithson, The Henry L. Stimson Center, ReportNo. 24, January.

21. Pearson, Graham. S (1995), Chemical and Biological Defence: An Essential Security Requirement, Proceedings 8th International Symposium on Protection Against Chemical and Biological Warfare Agents, Stockholm, Sweden, 11 - 16 June 1995, p. 14

22. Perry Robinson, J. P. (1998), 'The CWC Verification Regime: Implications for the Biotechnological & Pharmaceutical Industry', Briefing Paper No. 11, University of Bradford, 1998. Available on http://www.brad.ac.uk/acad/sbtwc

23. MacEachin, Douglas J (1998), Routine and Challenge: Two Pillars of Verification, The CBW Conventions Bulletin, Issue No 39, March, pp.1-3.

Graham S. Pearson is Visiting Professor of International Security, Department of Peace Studies, University of Bradford, Bradford, West Yorkshire BD7 1DP, UK. Fax+44-1672-539582, E-mail Graham_Pearson@Compuserve.com

© 1999 The Acronym Institute.

Return to top of page

Return to List of Contents

Return to Acronym Main Page