Disarmament Diplomacy

Hurdles Cleared, Obstacles Remaining: the Ad Hoc Group Prepares for the Final Challenge

By Jenni Rissanen

Introduction

The Ad Hoc Group (AHG) of states parties to the Biological and Toxin Weapons Convention (BWC), charged with negotiating a verification Protocol to the treaty, concluded its penultimate (23rd) session - April 23-May 11 - with applause and some sense of accomplishment. Prior to the session, no one could be sure what lay in store: three weeks earlier, on March 30, the Chair of AHG, Ambassador Tibor Tóth of Hungary, had tabled a 210-page compromise proposal for the Protocol - his "composite text". When the session began, all attention centred on how the Chair's text would be received and whether it could lead to end-game negotiations enabling the Group to fulfil its mandate and conclude its work before the Fifth Review Conference of the BWC, scheduled for November 19-December 7 this year.

On the last day, May 11, there was a generally positive feeling in the Group. The majority of delegations had welcomed the Chair's move to introduce the text and supported it as the basis for further negotiations. Even the small number of more resistant countries, reluctant to forego bracket-by-bracket negotiations on the rolling text - which the AHG has been considering since 1997, and which has slowed down progress in the last few sessions - agreed in the end that the rolling text was now "the underlying basis for negotiations"¹ - understood to mean a kind of a 'safety net' containing all the different national positions expressed thus far. Moreover, towards the end of the session, the less enthusiastic states began giving the Chair feedback on his text, although not always in the formal sessions: a sign that Tóth's text was functioning as at least the de facto basis of the AHG's work in the 23rd session. Speaking after the session had concluded, Tóth felt the session had been "surprisingly constructive, notwithstanding all the difficulties".²

During the first two weeks of the session, Tóth provided the AHG with an exhaustive article-by-article explanation of his text, elaborating his thinking in constructing the composite text's many compromises. Based on feedback from delegations both in formal and informal sessions, Tóth compiled a list of issues which were then tackled in informal consultations - sometimes running till late in the evenings - during the third week. The major outstanding issues were narrowed down to six areas: definitions, declarations, follow-up after submission of declarations, measures to strengthen the implementation of Article III of the Convention (transfers), investigations, and legal issues. Despite the satisfaction at the atmosphere and outcome of this session, it should be noted that positions on all these issues are still very entrenched, and in some cases diametrically opposed, especially with respect to the question of transfers and export controls and entry-into-force. Bridging these gaps in the time remaining - only one further session of talks, scheduled for July 23-August 17 - continues to constitute a daunting challenge.

In addition, there is growing concern about the commitment of certain countries to this process, notably the United States, who, notwithstanding a brief general intervention during the last day, stayed silent in the formal proceedings and, reportedly, contributed very little in the informal consultations. Countries like Iran tried turning the spotlight on the US stance, but without much success. However, worries over Washington's possibly wavering dedication to the process are shared more widely, throughout the different groupings. It is no exaggeration to say that the non-engagement by the United States is planting 'seeds of distrust' in some delegations and capitals that, if allowed to grow, could jeopardise the whole negotiations at a crucial and delicate juncture.

From Mixed Reactions To a "Mass in the Middle"

The opening day, April 23, heard ten statements in support of the Chair's move to introduce the composite text, all advocating it as a basis for negotiations. However, a small number of Non-Aligned Movement (NAM) countries resisted. By the end of the session, some forty countries had shown support for the text, indicating that there was a growing "middle-mass" in the AHG, clearly demonstrated by a joint cross-group statement on May 2.

A total of fifteen delegations addressed the issue of the Chair's text on the first day, revealing a broad divide between the European Union (EU) and some other western delegations, plus 'moderate' NAM countries such as Brazil, Chile and South Africa - all of which welcomed the Chair's move as the basis for further work, albeit noting that it did not meet all their concerns - and those wary of the initiative, notably China, Iran and Pakistan, keen to downplay the Chair's initiative by referring to the composite text as good "reference", "supplementary" or "background" material, while insisting that the rolling text, currently incorporating around 1,400 brackets, remain the basis of deliberations.

The Chair shared with the AHG his impressions of the situation: he had presented his "composite text", offering "a helping hand" in order to break the impasse in the negotiations. It was now up to the delegations to "pick it up and continue from there". He acknowledged that the rolling text was the basis of the negotiations and that this could only be changed if all delegations agreed. Referring to the content of his proposals, Tóth emphasized that the text was intended to make not just a few but "all delegations unhappy", as a sign of a balanced package upon which everyone needed to compromise. He appealed to delegations to take "a holistic view", and not focus on single national gains or losses. He reminded the AHG of its mandate and urged it to consider what collective gains the Protocol could bring - or, conversely, what all would lose in the absence of an agreement.³

Sweden took the floor on behalf of the EU, a strong supporter of introducing the composite text, and thirteen associated countries. The EU believed that through the introduction of the text, the AHG would "be able to find solutions to the remaining open questions", in order to conclude the negotiations before the Review Conference. Without commenting on substance, Sweden cautioned that it did not "meet all EU expectations", setting the tone for many of the other supportive interventions. Like the Chair, the EU urged delegations to consider the text as a whole. It "should be the platform for the political decisions that are needed now".⁴ Argentina, Australia, Japan, New Zealand, South Korea, and Switzerland agreed, believing that further work should be based on the Chair's text.

Russia felt that the rolling text was reflected in the Chair's version to a great extent. However, there was still a need to look carefully at all the proposals in the rolling text. At first glance, while the composite contained "many positive points", there were also "a number of unacceptable positions" which Russia was ready to work on.⁵

As noted, the views in the NAM were split: Brazil, Chile and South Africa welcomed the introduction of the text whereas China, Iran, Pakistan and Libya were more critical, with Cuba somewhere in the middle of this spectrum.

China and Pakistan both argued that the Chair's text held the same status as Part II of the rolling text (a compilation of proposals by the Chair and the Friends of the Chair). In perhaps the most critical view, China expressed its unhappiness about the Chair's proposals on clarification visits, decision-making mechanism for investigations, declaration triggers, and transfers, believing that the composite's treatment of these issues was "one-sided" and left delegates "still far from final agreement". Given the diversity of views, "nobody [could] be sure about the fate" of the text.⁶ Pakistan called for "a good, fair Protocol" which included "unambiguous" provisions on cooperation and establishing a multilateral transfer regime as well as a mechanism to deal with transfer denials.⁷ Cuba had studied the Chair's text with a "constructive mind". Although it was not "completely satisfied", it felt the Chair had made a good attempt to satisfy different interests. It agreed with Pakistan on the need to establish a dispute settlement mechanism allowing countries to take up the issue of denied transfers.⁸

Iran underscored its commitment to multilateral arms control and disarmament instruments and sought to rectify the impression that some were giving in the AHG, "perhaps intentionally": that the developed countries were "the guardians of the Convention and the Protocol", which needed to be "protected against the threats and plots planned by developing countries". It warned against a "shift of blame" game, a clear reference to the United States. Iran believed the composite text did indicate that that AHG was moving negotiations onto a more crucial stage, but "not necessarily the endgame". It wanted "a red-line version" of the text in order to help compare it to the rolling text. Commenting on substance, Iran stated it did not find the text balanced and expressed disappointment, in particular, with the treatment of the entry-into-force question, as did Libya, and the technology transfer provisions.⁹

Expressing itself as "very pleased" with a "balanced text", Brazil argued that it could serve as a basis of further work. Brazil, which is Friend of the Chair on cooperation issues, was satisfied with the solutions Tóth had found on the few outstanding cooperation issues and believed the text contained "politically viable" solutions for the problem of technology transfer disputes.¹⁰ Chile thanked the Chair for his courage and called for "intelligent and forward-looking movement" among delegates. Chile saw in the composite text not only the intention but also the materialisation of compromise, and agreed with the Chair that a wide sense of dissatisfaction would mean that a workable balance had been struck. Regardless of whether the text was going to be a or the basis of negotiations, it "fills a political need".11 Given the short time remaining, and while continuing to reserve its national positions, South Africa supported the Chair's decision and agreed with many others that the text should constitute the basis for future work.¹²

A number of other countries spoke in favour of the Chair's text during the first and second week. As demonstrated by the May 2 collective statement by Austria, Brazil, Chile, Guatemala, Ireland, the Netherlands, New Zealand, Norway, Peru and South Africa, and by other statements, a middle-mass was growing. In addition, Mexico welcomed the text during the second week and indicated readiness to work on it. In contrast, and perhaps in response, a group of NAM countries, however, namely China, Cuba, Iran, Indonesia, Libya, Pakistan and Sri Lanka, called for immediate rolling text negotiations.

In the cross-group statement, the ten countries felt that although the Chair's text contained proposals that caused them "concern", it nevertheless reflected a "careful and sustained endeavour to reach comprehensive and balanced compromises". In a clear message to the AHG as a whole, they acknowledged Tóth's text as "the basis" to conclude the negotiations. The statement, by its own description, represented "clear testimony that there is common ground between the different groups in these negotiations and that there is real scope for outstanding issues to be resolved".¹³

As the examination of the text neared its conclusion, the question 'what next?' became more prominent. Pakistan raised this issue on May 3, arguing that the AHG should soon refer back to the rolling text negotiations, so as to not "lose momentum and the proverbial race against the clock". This was the first visible sign of a possible procedural battle over the drafting of language on the status of both the rolling and the composite texts in the AHG's procedural report.¹⁴

China, Cuba, Iran, Indonesia, Libya, Pakistan and Sri Lanka pressed on the matter further in a joint statement on May 4. The seven countries noted that there were less than 30 working days left to the AHG, and expressed concern that it "may not be able to conclude its work as mandated". Thus, they "firmly" believed that the AHG "should immediately resume substantive negotiations based on the rolling text to achieve consensus on those outstanding issue[s]."¹⁵ They did not explain, however, just how the negotiations on the heavily-bracketed rolling text, rather than the composite text, could solve those issues more expeditiously. Some noted that Mexico and India did not join in this statement, believing this indicated a shift in one "like-minded" group in the AHG. India made a short statement, its first and only one in this session, calling for "greater political will" in the interests of time, so that the AHG could conclude its work before the Review Conference. India did not, however, express preference for one text or the other.¹⁶

By the end of the second week, the two groups had emerged: a large majority, some forty countries, welcoming Tóth's text as the basis of further negotiations, and a small minority of countries either opposing these efforts or remaining silent. Delegations in the majority group had been providing Tóth with feedback on his text throughout his explanations. Notwithstanding this constructive work, however, the non-engagement by some in the minority group risked throwing a spanner in the works.

Meanwhile, the continuing silence by the United States did not go unnoticed, and there was growing speculation about when the new administration would complete its foreign policy review. Rumours and press reports (see, for example, Chemical & Engineering News Today, April 20, 2001) indicated that the review, although yet to be approved at the highest political level, was likely to take a negative stance on the Protocol. Although only Iran pointed openly to this prospect in the meetings, it was clearly one of the prime topics in the corridor discussions. In the end, perhaps feeling some pressure, the US delegation did speak, making a general statement thanking the Chair for his efforts, and particularly his article-by-article explanations, believing they would be "useful in our review of the composite text". However, the statement emphasised that these explanations did "not serve as a legally authoritative interpretation" of the text, and that understanding could vary among the different negotiators. For instance, the United States had "a different interpretation" than the Chair on "a number of provisions". In the end, the text had to "speak for itself".¹⁷

Prior to this statement, Iran had described an "important concern" overshadowing the negotiations: the silence on one delegation's part that could be "very disappointing". Iran was not sure whether this meant that this delegation was going to "join us in this train...going in the right direction". Indicating a softened position towards work on the Chair's text, Iran added it was ready to discuss Tóth's proposals as long as the rolling text was retained as a "safety net". However, it added a caveat in a clear message to the United States: it could "not tolerate" making compromises and showing concessions with the assumption of going forward and then "be surprised at the last stage that everything we have done will be under[mined]." ¹⁸

Composite Text v. Rolling Text

Iran's statement, made at the beginning of the third week - particularly the reference to the rolling text as "a safety net" - was seen by some as a possible indication of Iran's flexibility to work on the Chair's text. And, indeed, as the final week unfolded, some thought that further encouraging signs appeared. Italy, for instance, noted this on May 8 by thanking China, Cuba, India, Indonesia, Iran, Mexico, Pakistan and Sri Lanka, upon their tabling of a joint working paper, for "breaking their silence on [the Chair's] text", believing this allowed the AHG's work "to benefit from inputs, suggestions and even critique from key delegations...in a crucial phase of our negotiations."¹⁹ Such input was increased during the last week when the AHG engaged in informal consultations on the six areas identified by the Chair as needing further attention. With participation by different sides in these consultations, and without any further calls to return back to rolling text negotiations, the composite text had turned into at least a de facto basis of work in the 23rd session.

There was one more challenge ahead, though: deciding how to address both the composite and rolling texts in the Group's final report on the 23rd session. Although China attempted to retain the old formulation that would have reaffirmed the rolling text as the "only basis for negotiations", this potentially harmful procedural battle was avoided by referring to the rolling text as "the underlying basis for negotiations" and with a factual description of the AHG's work involving the composite text, leaving all participants seemingly content as they concluded the session and headed home.²⁰

A Narrowing Focus

At the beginning of the third week, the Chair had prepared a list of six issues which, based on comments received during the first two weeks, he considered to deserve additional attention: definitions; certain aspects of declarations; visits, both randomly selected and clarification; the composite text's sections D and E on transfers; decision-making in investigations; and the Protocol's entry-into-force. Tóth emphasized that, with only 25 negotiating days left, it was not possible to handle an excessive number of issues. Thus, he asked delegations to show "not just negotiating maturity but political maturity as well". These six areas included not only matters of a technical nature, and issues that could be relatively easily addressed, but also "heavy-weight issues" and "a set of mutually-exclusive proposals". Therefore, it was necessary that countries refrained from restating their known positions, and moved on to identifying possible consensus solutions.²¹

During the final week, the AHG focussed on these six areas both in formal and informal sessions. The following analysis discusses in some detail the more controversial issues in each of the areas, outlining the Chair's proposals and, where possible, the different responses and views of delegations.

1. Definitions

The question of definitions has caused nervousness in some delegations. One fear is that circumscribed definitions could create loopholes; another concern is of creating false interpretation of the Convention's purposes. For other delegations, however, this has been one of the most important sections of the Protocol. Russia, in particular, has paid great attention to definitions throughout the negotiations and reiterated in the 23rd session that it attached "great importance to the inclusion of proper definitions...in order to clearly understand its scope and assess specific activities that could be related to biological and toxic weapons".²²

Tóth explained that attempts to include five basic definitions in the rolling text had thus far proved difficult: biological and toxin weapons; biological agents; toxins; hostile purposes; and purposes not prohibited by the Convention. He had included three basic definitions in his text: biological and toxin weapons; purposes not prohibited by the Convention; and biological materials. Tóth explained his criteria in selecting these by saying that "only definitions required for the Protocol" had been included. Furthermore, he had avoided drafting the article in a way that would have amended the Convention. In addition to adding some new (non-controversial) definitions, the rest of the definitions in the composite text were based on those in the rolling text.²³

2. Declarations

Delegations have differed particularly on the question of the cut-off date (both before and after) and the detail required for initial declarations of past offensive and defensive biological weapons programmes (section B in the composite text). At least three options have been put forth by delegations. China, for instance, is known to favour a cut-off date of June 17, 1925 (post Geneva Protocol period) in order to include Japanese wartime activities. The other two suggested dates are January 1, 1946 (post-World War II) and March 26, 1975 (post-entry-into-force of the Convention).

The composite text obliges states parties to provide a general narrative statement that summarizes their offensive programmes between 1946 and the entry-into-force of the Convention for that state party. However, they would be required to provide more detailed information for the period of ten years prior to the Convention entry-into-force on facilities which weaponised or stockpiled agents and toxins as well as on any use of such weapons. As for defensive programmes, states parties would be required to declare those programmes conducted 10 years prior to the entry into force of the Protocol.

France commented on the cut-off date, saying it was a difficult issue and that it would have preferred the 1975 option. Nonetheless, the compromise seemed "satisfactory". In the case of defensive programmes, it felt the ten years period would create a lot of work, and would therefore have preferred a period of five years.²⁴

In addition, the scope and coverage of annual declarations of biodefence programmes (section C) have been controversial. This question has been particularly sensitive for countries with large biodefence programmes such as the United States, which has sought to limit declarations to research and development for national security reasons. However, others have argued that due to the thin line between prohibited and permitted activities, especially in the case of bio-defence, everything should be declared.

In introducing the composite, Tóth said his text required that "all activities, not just research and development" be declared. Countries would need to declare their programmes' general objectives and main elements and summarize their research, development, testing and evaluation activities. As for facilities, the "less relevant" sites would be excluded under a formula which required that all facilities which conducted work on pathogenicity, virulence, toxinology and aerobiology had to be declared if they involved 15 person years of effort or employed more than 15 personnel (alternatively, if there were less than ten such facilities, the largest facilities, making up 80% of the total effort involved, would have to be declared). If these criteria were not met, and in order to catch smaller facilities, states parties would need, for the sake of transparency, to declare those facilities which engaged in experimental work with more than 2 person years of effort or had more than 2 personnel.²⁵

However, there are fears that the trigger for biodefence may not be a level playing field for all as it could create two categories, putting states with large and smaller programmes in an unequal position.

The EU commented on the biodefence proposal, noting that although it was clear that "no country would accept that its security should be reduced by excessive transparency", it was nonetheless regrettable that the Chair had focused on only some of the relevant activities.²⁶ France added that it would have liked to see more far-reaching declaration provisions, involving not only research, development, testing and evaluation, but maybe also production.²⁷

The Chair held informal consultations on these questions on May 7 and reported back on them, saying that there were still "wide gaps" to be bridged.²⁸

3. Follow-up After the Submission of Declarations: Visits

The questions of randomly-selected transparency visits and clarification visits have long caused division in the negotiations and were predictably among the topics in the informal talks in this session. The AHG reportedly discussed the purpose of randomly-selected transparency visits and the provisions regarding access during, and reporting on, such visits. In addition, the contentious issue of clarification visits, which western countries support and some NAM countries oppose, and particularly the question of to what extent they should be mandatory, was among the hot topics discussed in the third week.

The composite text envisages the purpose of transparency visits as "increasing confidence in the consistency of declarations...and encouraging submission of complete and consistent declarations", "enhancing transparency of facilities", and "helping the Technical Secretariat... to acquire and retain" understanding of the declared facilities and activities. It is known, however, that some countries, including New Zealand, the Netherlands and Norway, want the purpose of these visits to be not only to increase confidence in consistency, but also to enhance the accuracy of declarations.

As for access during such a visit, the composite text takes into account concerns over loss of commercial proprietary information by stating that "the nature and extent of all access inside the facility...shall be at the discretion of the visited state party" and that the state party has the "right to take measures to protect national security and commercial proprietary information". Denied requests for access and information may not to be commented on in the final report following the visit - language that has frustrated some countries who feel these matters should be reflected in the report.

In addition to transparency visits, the issues of declaration clarification procedures, and particularly clarification visits, have divided the AHG. Tóth's complex multi-step proposal on the initiation of clarification visits is an attempt to strike a balance between two diverse positions: one held by a group of NAM countries, including China and Iran, favouring the use of 'triple-C' - consultation, clarification and cooperation - procedures in the case of undeclared facilities; the other, favoured by the EU for example, setting out specific clarification procedures, including mandatory visits, with respect to both declared and undeclared facilities.

Tóth's text proposes that whenever a state party feels there is ambiguity, uncertainty, anomaly or omission in another state party's declaration, the matter should be resolved either through the triple-C process or specific clarification procedures. In the more contentious case of facilities believed to meet the declaration criteria but which were not declared, it is up to the state party from whom clarification is sought to decide which procedure to use - a procedure referred to by some as the "fork in the road" approach. In the latter case, the Director-General of the organisation could request a declaration.

Upon receiving a request for clarification, the state party concerned would be required to provide clarification in writing within 30 days. If the matter was not resolved through written clarification, consultative meetings would follow. The state party could at any time offer a voluntary visit. If the matter remained unresolved, the Director-General could "suggest" to the state party "that it might" offer a voluntary clarification visit. If no visit was offered within 21 days, the matter would be handed to the Executive Council for consideration. The Council could, as one option, decide to initiate a (mandatory) clarification visit. Both the requesting and requested state parties could take part in the Executive Council's deliberations and decision-making. The decision to initiate the visit would, as an issue of substance, require consensus, where possible. If there was no consensus, a two thirds majority would need to be present and vote for the visit to proceed. With this intricate proposal, the Chair has made an attempt to satisfy both sides: visits to clarify questions regarding declarations are provided for, but making them mandatory requires a set of multiple steps.

Commenting on the composite text, the EU spoke in favour of "appropriate" procedures, including mandatory clarification visits, when necessary. It added that it was crucial that these clarification procedures applied also in the case of facilities that should have been declared.²⁹

Reporting on his consultations, Tóth conceded the persistent lack of consensus on this issue. While "one side" still considered the declaration clarification procedures as "superfluous", given the existence of triple-C measures, assistance visits and investigations, the "other side" held the view that they - particularly mandatory clarification visits - were "the single most important activity in the Protocol", allowing for "focused on-site activities".³⁰

4. Measures to Strengthen the Implementation of Article III of the Convention: Transfers and Export Controls

Transfers and export control arrangements, such as those of the Australia Group (AG), have arguably been the most controversial topic throughout these negotiations and, like the entry-into-force question, one only ever likely to be resolved in the very final stages of the negotiations. Delegations have been keen to protect their 'bottom line' views on the topic, and during the six years of the negotiations countries have mainly reiterated their known positions and engaged in little genuine solution-seeking dialogue. The AHG has been 'sitting on' the issue, partly fearing that it evokes sufficiently diverse and opposing views to derail the whole process if 'let out of the bag' at a wrong moment. However, with time running out and the composite text now introduced, this crucial matter is now out on the negotiating table. Indeed, when Tóth's text appeared on March 30, many turned quickly to those pages containing his proposals for measures to strengthen the implementation of article III (transfers) of the Convention (Article 7), as well as his suggested provisions for scientific and technological exchange for peaceful purposes and technical co-operation (Article 14), a topic closely linked in many delegations' minds.

In introducing his text on Article 7 (transfers), Tóth said the AHG could now longer avoid the political sensitivities surrounding the subject. This section of the composite had been difficult to draft, due to the "embryonic form" of the rolling text on this as well as the very different expectations of delegations. A number of NAM delegations, particularly China and Iran, have made it no secret that they want to abolish the Australia Group, which they consider a discriminatory western arrangement hampering the economic development of developing countries. The preferred option of such delegations is the establishment of a multilateral export control regime in the Protocol. The AG and other countries, however, have resisted such attempts on the basis of the obligations contained in Article III of the Convention proper, pointing adamantly to the sovereign right, and obligation, of countries to combat WMD proliferation. Tóth said there were "no nuances here as in other areas" of the text. He felt it was in this area that he needed to bring in some new thinking. Stressing the evident need for compromise, he said this was a case of "a half a loaf [of bread], or no loaf at all".³¹

Under the composite text, states parties to the Protocol would need to amend or establish implementation legislation to regulate the transfer of agents and toxins, equipment and technologies, and to report to the future organisation on the measures they have taken. In addition, the text includes four sections on transfer guidelines, notifications, consultations and the review of this article, by which states parties would be required to take measures to ensure that transfers take place only for peaceful purposes through measures such as end-use certificates, written non-transfer undertakings, requiring information on national transfer related laws and regulations from the requesting party. When transferring dual items, including specified fermenters, aerosol chambers, experimental aerobiology studies and aerosol analytical equipment, states parties must ensure they will be used only for peaceful purposes. Finally, Tóth's text specifies a notification requirement on aggregate data on exports of certain types of equipment.

Given the complexities and controversy associated with the issue of transfers and existing export control arrangements, as well as the lack of middle-ground proposals on these matters, it is no surprise that Article 7 was commented on fairly heavily in this session, leading to necessary, albeit heated, discussion and dialogue. Whether this will lead to acceptable solutions for all, however, is another question, still likely to wait until the final weeks, if not days, of the negotiations.

A group of NAM countries tabled two working papers on transfers and export controls, arguing the case for multilateral export controls within the Protocol framework. China, Cuba, India, Indonesia, Iran, Libya, Mexico, Pakistan and Sri Lanka issued a joint paper maintaining that although countries had the right to "exercise discretion in their export decisions", it was "vital to establish a fair, transparent and multilateral export regulation mechanism within the future Organization" to ensure that states parties, once they acceded to the Protocol, were not "arbitrarily subjected to measures which in effect constitute a denial of their rights" under the BWC. Such a system would regulate export controls and settle transfer-related disputes, allowing states parties to "participate extensively in peaceful international cooperation and exchanges in the biological field on an equal footing". The nine countries believed the Protocol should include multilaterally negotiated transfer guidelines and that this, together with effective national export control policies, would "constitute the most effective means of addressing concerns relating to potential proliferation risks", thus greatly enhancing confidence in the Convention's implementation. In a clear reference to the Australia Group, it was argued that "measures that are based on exclusivity rather than inclusivity, and implemented on [a] discriminatory and selective basis, have no raison d'etre but an adverse impact on effective implementation and the universality of the Convention and the Protocol."³²

Italy commented on the above working paper and the Chair's proposals in a carefully thought-out statement attempting "to tackle the complex problem [of export controls] from a different angle". Describing the fear that national export controls would hamper the economic development of non-industrialized countries as "excessive", Italy stated that it was "convinced that it is possible to identify, with an acceptable degree of certainty, requests of transfers that may be diverted to illegal activities from those genuinely related to international cooperation". Furthermore, the potential proliferator was "likely to have already a program...designed to weaponise biological agents" and its requests were therefore likely to focus "on single, specific components or products" which were "bound to raise legitimate suspicions and, consequently...a denial." Italy stressed that Article III of the Convention created only a negative obligation not to transfer when there was reasonable concern. Moreover, industrialized countries had an incentive to expand their transfers as this was "worth [a] huge amount of money". Italy also criticized the transfer dispute mechanism envisaged in an earlier NAM working paper³³ which, it argued, could "ultimately allow a multilateral body to overturn a sovereign national decision to deny a transfer, thus hampering the effective implementation of national export controls." This proposal, although made in good faith, was "difficult to understand", and Italy asked whether any of the governments sponsoring the paper would "really be ready to accept the idea of a multilateral body empowered to overturn a transfer denial [their] country had decided in case of serious concerns for your national security".

As for the solutions on transfers envisaged in the composite text, Italy was "extremely hesitant", especially about the proposals set out in sections D and E. Section D (consultations) states that countries "may consult among themselves on the implementation of the provisions of this Article". Section E (review) provides for the review of Article 7 in the first conference of states parties and for the review conferences to "keep under review the implementation of the provisions" of Article 7. Italy was worried that section C (paragraphs 10 and 11) would "grant requesting states parties the power to interfere and question national export control decisions", calling this "a radical innovation". Furthermore, it felt that the introduction of restrictions or prohibition of transfers to non-states parties in section E (paragraphs 18 and 19) seemed "legally baseless and unacceptable". Italy was also convinced that the Article should be reviewed only through the normal process of review conferences.³⁴

The EU commented on Tóth's proposals by reiterating that "the strengthening of Article III [could] in no case mean the weakening or replacement of national controls". The EU felt the Chair's proposals went "beyond the mechanisms agreed upon in comparable international legal instruments" by institutionalising the possibility of consultations, which the EU opposed. It agreed with Italy's argument on the question of review.³⁵

Russia also commented on Tóth's proposals, supporting the idea of including export control lists in the Protocol, suggesting to use the list of agents and toxins incorporated in the rolling text. It also noted that "for the first time we have seen the introduction of the idea of dual-use purpose goods". However, a list was needed in order to avoid disputes. As for the provisions on consultations between states parties, these could "damage the right of exporters" to take transfer decisions.³⁶

In addition to the joint NAM paper, China tabled a more detailed working paper calling for a "fair and rational" multilateral export control mechanism during the final week. China listed four principles on which such a mechanism should rest: (1) a balance between states parties' rights and obligations; (2) a balance between non-proliferation and development; (3) consistency between national legislation and a multilateral export control mechanism; and, most significantly, (4) the abolishment of discriminatory export control arrangements. The mechanisms should include "at least" (a) an effective export control list; (b) declaration of transfers of listed items; (c) end-user certificates; (d) free transfers among states parties; (e) "as a general principle", the non-transfer to non-states parties and finally (f) declaration of denied transfers as well as a regime to solve transfer denial disputes.³⁷

Ambassador Hu Xiaodi said the Protocol's timely conclusion depended on whether the issues of transfers and export controls were "properly addressed". He further clarified China's position on the issue, saying that his government did not oppose export control measures "in the form of national legislation", as, after all, a mechanism set up under the Protocol would also need to be implemented through appropriate domestic legislation. However, "no country or group of countries should establish or practice any measures inconsistent with the Convention of the Protocol." Once the Protocol entered into force, all export controls measures incompatible with and outside the Protocol "should be abolished or amended."³⁸

Reporting back on his informal consultations on the last day of the session, Tóth said the basic positions on transfers and export controls were still "very far apart", adding that he would take "a close look at the comments made".³⁹

5. Investigations

The launch-procedure for investigations and the extension of the investigation area were addressed in the informal consultations and included by Tóth in the category of most difficult issues. In cases of alleged non-compliance, delegations have been divided between a rapid 'red light' and a slower 'green light' procedure by which the Executive Council could initiate an investigation. Under the 'red light' procedure, an investigation would automatically take place unless the Executive Council voted against the move. Many western delegations favour this mechanism, both in the case of field and facility investigations. Conversely, the 'green light' procedure, which is supported by many NAM delegations, would require a positive majority vote before an investigation could be launched, thus raising the political threshold for such action.

In the composite text, both mechanisms are included in a "multi-tiered approach whereby different decision-making procedures are used depending on the specific circumstances". In the "most serious case " of alleged use of biological weapons on the territory of the requesting party, a three-quarter majority red light decision would be needed to prevent an investigation. However, facility investigations would be decided upon by a simple green-light procedure.⁴⁰

As for the areas within which investigations should be entitled to proceed, there have been differing views on how large they should be and whether they could be extended. The EU and some other western countries, for instance, have favoured large areas and simple extension procedures. The composite text provides for an area of 1,000 square kilometers in cases of human outbreaks and 7,500 square kilometres in cases of animal and plant outbreaks. Under certain circumstances, this area can be requested to be extended up to 2,000 square kilometres in the former case, and up to 15,000 square kilometers in the latter. However, the extension can only occur if the state party receiving the investigations agrees. If it does not, this is noted in the investigations report, but does not lead to further action.

The EU expressed disappointment that the composite text "had not included a provision for a 'red-light' procedure to launch an investigation for all scenarios - facility and field". In the EU's opinion, the relevant provisions should also allow for samples to be removed from the territory of an investigated state party. Furthermore, the investigation area should either have no limit or be easily extended.⁴¹

Speaking after the informal consultations, Tóth said there was a need for further assessment of these questions, both by himself and delegations.⁴²

6. Legal Issues: Protocol Entry-Into-Force

As for legal issues, the entry-into-force formula of the Protocol has been one of the more contentious areas. The different options included in the most recent version of the rolling text (from the February session) include Iran's proposal for a list of countries with advanced biological capabilities and technologies, along the lines of the CTBT, and - the preference of the great majority of delegations - a simple numerical formula, with a range of 45-75 ratifications specified as the entry-into-force threshold. In addition, some countries, such as China and Germany, have advocated a formula which would additionally require that the depositaries of the Convention - Britain, Russia, the United States - be included among the necessary ratifications.

Tóth's formula, in Article 27 of the composite text, is none of these. Instead, it sets both a quantitative and qualitative requirement: the Protocol would enter into force 180 days after the 65 States have ratified. Furthermore, half of the ratifications (33) would have to come from six different groups along the following lines: seven from Africa, four from East Asia and the Pacific, four from Eastern Europe, six from Latin America and the Caribbean, nine from the group of Western European and other states, and three from West and South Asia. These groupings follow the future organisation's Executive Council's set-up. In explaining his text, Tóth said delegations views' on this issue had been "diametrically opposed" and that his proposal for entry-into-force did not reflect any delegation's position, thus requiring compromise by all. He felt the requirement of 65 countries together with the requirement that at least half of them came from the different groupings would ensure "adequate regional representation" in the future organisation.⁴³

Tóth's proposal sends a message that bringing the Protocol into force is a collective responsibility. In so doing, it could help lay emphasis on the important implications for regional security of biological weapons and their control. It wisely avoids the repetition of the CTBT experience where the requirement of ratification by 44 specific countries has given any one of them a practical veto on the Treaty's entry-into-force, holding the whole Treaty hostage. Although questions remain with regard to the groups and where their borders would lie, it appears that meeting these requirements would not be overly difficult - a preferred choice given that the Protocol would be designed to strengthen already existing obligations under the BWC.

However, whether Tóth's formula will be acceptable for all is still unclear. A number of countries have commented on Tóth's proposal, including Iran as well as the like-minded group of countries. In addition, countries like Germany still want the depositaries to be included.

In its statement during the opening day of this session, Iran felt that this "essential issue" was not "appropriately dealt with in the composite text". Iran believed that many other delegations shared its concern about the Convention and Protocol's universality - in particular by countries considered as advanced in biotechnology. These concerns related to national, regional and global security as well as commercial interests.⁴⁴ Later in the session, Iran tabled a working paper on entry-into-force arguing that the Protocol could be efficiently implemented only if states "advanced capability in the field of biology and biotechnology" ratified it and became full members of the future organisation. Furthermore, in order to achieve universality, the Protocol had to address national and regional security concerns "of all states" and take measures to "encourage and make" those outside the Convention and negotiations "adhere to these legally binding instruments".⁴⁵ Iran's Ambassador, Ali Ashgar Soltanieh, elaborated his country's stance, noting that, in light of the unfulfilled assurances with regard to the CWC - in particular the assurances that those outside the regime (surely meaning Israel) would be pressured to join - Iran did "not trust anymore" that its concerns would be taken into account until they were addressed in the text of the agreement. Thus, it proposed in its working paper a CTBT-type formula whereby "50 States having advanced biological capabilities and technologies" listed in an annex would need to ratify before the Protocol entered into force.⁴⁶

China, Cuba and Libya expressed some support for Iran's proposal. China said it would insist on a formula that required ratification by more than 50% of the BWC states parties and its three depositaries. It also felt that, although it had some technical questions with regard to Iran's proposal - such as which countries should be listed - it was "a step in the right direction".⁴⁷ Cuba said it had supported a simple numerical formula, including the depositaries, which it felt was "proper in legal terms and showed consistency", but added that it was ready to consult with Iran on a formula that ensured prompt entry-into-force, encouraged universality and reflected everyone's security interests. Libya felt Iran's arguments were logical and that its proposal was "a compromise" that would "help to get a universal Protocol".⁴⁸

Also commenting on Iran's proposal, Russia said it agreed that entry-into-force should be "defined through the participation" of bio-technically advanced countries, but noted that it had problems with how to arrive at such a list. It was "flexible" on the issue, but preferred a simple numerical formula of 80 ratifications. Regarding the calls for the depositaries to be included, Russia said it was ready to meet such an obligation.⁴⁹

Representing the prevailing viewpoint in the AHG, the cross-regional group of the ten countries said it preferred a simple numerical entry-into-force formula and would "oppose any formula that would hinder the entry into force". There was no point in "trying to engineer adherence to [the Protocol] by micro-managing its entry into force" as the Protocol should "stand and fall on its merits".⁵⁰ Chile and Mexico agreed, saying they too preferred a simple numerical formula. Britain, supported by New Zealand, expressed "great doubts" about Iran's proposal, particularly the criteria used to compile the list of countries in its working paper.⁵¹

The AHG discussed the entry-into-force in informal consultations on May 10. The Chair had little new to report, saying that "long-standing views [had been] reiterated".⁵² As with the other contentious areas, resolution on this question seems likely to have to wait until the final phase of negotiations.

Conclusion

With the Chair's composite text now introduced and only one round of discussions left, one can truly begin to speak of an endgame - a word that has sometimes been used prematurely - in these negotiations. Tóth's compromise text has come into play at a late stage, necessitating some real bargaining in the last two sessions. It seems to have survived its first test with the majority of delegations welcoming it as the tool to complete the AHG's work. It has brought focus to the negotiations, as intended by the Chair, by identifying the six major outstanding areas of disagreement. However, although these were discussed in informal consultations, there was little new to report. Thus, they will need to be tackled and resolved in the final four-week session. In preparation for these decisive talks, Tóth will issue a new "technically adjusted" version of his text (incorporating editorial rather than substantive changes) and, accompanied by his explanations, send it to capitals for further examination. He has said he would also visit some capitals to "to try and explain why [the AHG] could and should" conclude is work.53 Indeed, if the AHG is to complete its work in time for the BWC Review Conference, the different capitals, including Washington, will need to do some important evaluating, thinking and deciding between now and July. As many have pointed out, these decisions will have ramifications beyond the BWC and the Protocol, as they will send wider signals about the importance countries attach to multilateral arms control, non-proliferation and disarmament instruments.

Notes and References

1. BWC/AD HOC GROUP/56-1.

2. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, Press Conference, May 11, 2001.

3. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, April 23, 2001.

4. Katarina Rangnitt, First Secretary, Permanent Mission of Sweden, on behalf of the EU, April 23, 2001.

5. Gennady Lutay, Russian Ministry of Foreign Affairs, April 23, 2001.

6. Hu Xiaodi, Ambassador of China, April 23, 2001.

7. Zaheer Janjua, First Secretary, Permanent Mission of Pakistan, April 23, 2001.

8. Anayasi Rodríguez Camejo, Second Secretary, Permanent Mission of Cuba, April 23, 2001.

9. Ali Ashgar Soltanieh, Ambassador of Iran, April 23, 2001.

10. Celina Maria Assumpção do Valle Pereira , Ambassador of Brazil, April 23, 2001.

11. Alfredo Labbe, Minister Counsellor, Permanent Mission on Chile, April 23, 2001.

12. Peter Goosen, Chief Director, Non-proliferation and Disarmament Section, Department of Foreign Affairs, South Africa, April 23, 2001.

13. Clive Pearson, Ambassador of New Zealand, on behalf of Austria, Brazil, Chile, Guatemala, Ireland, the Netherlands, New Zealand, Norway, Peru and South Africa, May 2, 2001.

14. Abdul Basit, Counsellor, Permanent Mission of Pakistan, May 3, 2001.

15. Anayasi Rodríguez Camejo, Second Secretary, Permanent Mission of Cuba, May 4, 2001.

16. J.S. Mukul, Counsellor, Permanent Mission of India, May 4, 2001.

17. Donald Mahley, Ambassador of the United States, May 11, 2001.

18. Ali Ashgar Soltanieh, Ambassador of Iran, May 7, 2001.

19. Mario Maiolini, Ambassador of Italy, May 8, 2001.

20. BWC/AD HOC GROUP/56-1.

21. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, May 7, 2001.

22. Z.P.Pak, Director General of the Agency of the Russian Federation for Munitions, National Authority on the Chemical Weapons Convention", April 24, 2001.

23. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, April 23, 2001.

24. Henri Garrgue, Mission of France, April 30, 2001.

25. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, April 23, 2001.

26. Katarina Rangnitt, First Secretary, Permanent Mission of Sweden, on behalf of the EU, April 24, 2001.

27. Henri Garrgue, Mission of France, April 30, 2001.

28. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, May 8, 2001.

29. Katarina Rangnitt, First Secretary, Permanent Mission of Sweden, on behalf of the EU, May 2, 2001.

30. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, May 9, 2001.

31. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, May 2, 2001.

32. BWC/AD HOC GROUP/WP.452, May 7, 2001.

33. BWC/AD HOC GROUP/WP.432, November 23, 2000.

34. Mario Maiolini, Ambassador of Italy, May 8, 2001.

35. Katarina Rangnitt, First Secretary, Permanent Mission of Sweden, on behalf of the EU, May 3, 2001.

36. A member of the Russian delegation, May 10, 2001.

37. BWC/AD HOC GROUP/WP.453, May 8, 2001.

38. Hu Xiaodi, Ambassador of China, May 8, 2001.

39. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, May 11, 2001.

40. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, April 23, 2001.

41. Katarina Rangnitt, First Secretary, Permanent Mission of Sweden, on behalf of the EU, May 4, 2001.

42. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, May 10, 2001.

43.Tibor Tóth, Ambassador of Hungary and Chair of the AHG, April 23, 2001.

44. Ali Ashgar Soltanieh, Ambassador of Iran, April 23, 2001.

45. BWC AHG/WP.454.

46. Ali Ashgar Soltanieh, Ambassador of Iran, May 11, 2001.

47. Fu Zhigang, First Secretary, Permanent Mission of China, May 11, 2001.

48. A member of the Libyan delegation, May 11, 2001.

49. A member of the Russian delegation, May 11, 2001.

50. Clive Pearson, Ambassador of New Zealand, on behalf of Austria, Brazil, Chile, Guatemala, Ireland, the Netherlands, New Zealand, Norway, Peru and South Africa, May 2, 2001.

51. John Walker, Foreign and Commonwealth Office, May 11, 2001.

52. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, Press Conference, May 11, 2001.

53. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, Press Conference, May 11, 2001.

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