Disarmament Diplomacy

BWC Update

US Jeopardises BWC Protocol

By Jenni Rissanen

Introduction

Press reports from the United States say that the US government is preparing to reject the draft verification Protocol to the Biological and Toxin Weapons Convention (BWC). If confirmed, the US decision would unquestionably deal a grave blow to efforts to strengthen the Convention. Unsurprisingly, the reports are preoccupying many delegations as they prepare for the upcoming final four-week session of the Ad Hoc Group (AHG) in Geneva (July 23-August 17). The Group, now in its sixth year of negotiations, is attempting to finalise a draft text in advance of the Convention's Fifth Review Conference at the end of the year (November 19-December 7). Despite the deep concern, the fight for the Protocol, both in the US and internationally, is clearly ongoing. Two Congressional hearings on the topic were scheduled for June, to the background of vigorous diplomatic efforts, particularly by the Europeans, to push for the timely conclusion of the negotiations.

The first report indicating that the US was about to reject the Protocol emerged in late April, during the last set of talks by the AHG (April 23-May 11).¹ The news, reinforced by the US silence during the session, led to speculation about exactly when and how the Bush administration would make its position known. This speculation was further fuelled by subsequent press reports. On May 20, the New York Times ran a story quoting US officials saying the new administration's policy review would recommend that the United States not accept a draft agreement to enforce the BWC. According to the article, the team in charge of the review on the Protocol, led by Ambassador Donald Mahley, had unanimously concluded that the current draft would not prevent cheating and that it could not be 'fixed' to do so by the time of the Review Conference.²

Officially, the US government has held the line that the review on the Protocol has not yet been completed. A State Department spokesperson noted that the US government would "continue with [its] review and look forward to [the] next round" of talks. The spokesperson added that Ambassador Tibor Tóth of Hungary, the Chair of the AHG, had been told during a visit to Washington on May 22 that once the "review [was] completed and a decision on the US position [was] reached", the United States would "work with him to develop a strategy to move forward during the next ad hoc group session".³

House of Representatives Hearings

The US Congress held a hearing on the status and implications of the Protocol on June 5. The Subcommittee on National Security, Veteran Affairs and International Relations of the House of Representatives, chaired by Christopher Shays (Republican), addressed two questions: how it was determined that the Protocol, in its present form, would improve the verifiability of the Convention, and what additional mechanisms could be used to strengthen and improve the Convention? The Committee heard testimonies from NGOs, research institutes, the industry and the government. The two government witnesses, the Assistant Secretary for Verification and Compliance, Owen Sheaks, and Ambassador Mahley, reportedly chose not to attend the hearing, submitting their testimonies in writing. Sheaks, in particular, rejected the Protocol as not doing the job with regard to verification. Shays has scheduled another set of hearings for June 26; hopefully, this time the two government representatives will be present.

Mahley's written statement opened on the defensive, seeking to "clarify some of the inferences that may have been drawn from" several press stories making "a number of claims both about the position of the United States and the prospective outcomes for the negotiations". Mahley insisted bluntly that "the United States [was] not thinking about withdrawing its support from the Biological Weapons Convention", calling such implications "absolutely false and unfounded".

As for the Chair's composite text - his compromise proposal for a Protocol - the United States, like "many, if not all, of the other parties in the negotiations," had "serious substantive concerns". Mahley described such concerns as in "the nature of multilateral diplomacy". He failed to mention, however, that notwithstanding expressions of reservations, more than forty delegations, from different regional groups, had welcomed the Chair's text and advocated it as the basis of concluding the negotiations.⁴

Mahley then identified a key unanswered question: whether the text had "enough substantive and political utility...to allow the United States to accept and sign this text despite the substantive concerns [it] still [had] with it"? The Ambassador repeated the underlying principle the United States had adhered to in the negotiations: seeking "improvement in the ability to impede the threat and reality of biological weapons proliferation in the world." The United States was seeking a balance that "would achieve greater benefit in the non-proliferation and arms control objectives than costs to legitimate national security and commercial interests" - a judgement to be made at senior political levels.

Referring to the Fifth Review Conference, Mahley said the United States did not consider the meeting a deadline but rather a target date for the AHG to aim for. However, the United States was not "blind to the very real political implications of not finishing...by the Convention's Review Conference". If the AHG process was not complete by this time, Mahley expected "a very troublesome" conference with "bitterly fought attempts to incorporate national views in the Final Document".

In conclusion, Mahley argued that it was "time for a decision in the Ad Hoc Group negotiations". If the Chair's efforts, in the form of the composite text, were insufficient to achieve a substantive breakthrough, what would the alternative be? Mahley assured the Committee that the United States was "grappling with those questions" and understood the "balancing we must do in evaluating the available options".⁵

In his statement, Assistant Secretary Sheaks focussed on the verifiability of the BWC. The Convention was "inherently difficult to verify", Sheaks argued, due to the fact that it hinged on questions of intent which were often "difficult to determine". Another consideration was the nature of biological weapons: there was an absence of "physical signatures" of weapon programmes due to the "small-scale and unremarkable features of biological production". These features "virtually preclude the achievement of an effective international verification system". In a bleak conclusion, Sheaks reasoned that because the future organisation would not be able to collect detailed national intelligence information, which he considered as "essential for uncovering illicit intent", and because there was an absence of external signatures at biological warfare facilities, a Protocol "would not improve our ability to effectively verify compliance with the BWC either in terms of certifying that a country is in compliance with, or in violation of, its obligations".

Addressing the specifics of the Protocol under consideration, Sheaks concentrated on three key topics in the Chair's text: declarations, visits and investigations. On declarations, he argued that since the criteria for declarations were necessarily highly selective, "only a small fraction" of those facilities that could potentially be used for biological weapons production would be declared. In what appeared to be an attempt to undermine the role of declarations altogether, Sheaks argued that it was "an analytical certainty" that states that were conducting offensive programmes would not declare the facilities used for illicit purposes or would embed those activities within legitimate activities.

Regarding visits, Sheaks explained to the Committee that they were intended "to enhance transparency and not to improve our ability to verify compliance". Despite this, Sheaks criticised randomly-selected transparency visits for suffering from the same "verification failings" as declarations: only a small fraction of facilities would be subject to review. Even if they were visited, Sheaks concluded, illicit work could be "concealed or cleaned up, rendering it highly improbable" that "evidence of non-compliance" would be detected - an argument that does not sit well with the fact that the composite text envisages these visits as "confidence-building in nature". It also ignores the fact that, within the AHG, the United States has been strongly opposed to attaching any verification value to the visits, or even to visits being portrayed as a means of ensuring that declarations were "accurate".

With respect to investigations, Sheaks contended that while they "could help to deter cheating", they had "inherent limitations" due to inevitable delays in launching and initiating the process; delays which, he argued, would leave enough time to clean up or otherwise conceal evidence. Moreover, because of the dual-use nature of the equipment likely to be involved, violators could "explain away" any concerns and use managed-access rights to shield any incriminating evidence.

On these grounds, Sheaks concluded that the declarations, visits and investigations contained in the Chair's text would not improve the verifiability of the BWC. In a sweeping summary, he said the Protocol would "not improve our ability to verify compliance". The dual-use nature of biology, combined with the advancement and spread of biotechnology, "have conspired to make the BWC not amenable to effective verification, especially by an international organization." However, it was still sometimes possible to determine whether a country was conducting illicit activities. How? Through national intelligence, as had been the case in detecting the Soviet and Iraqi programmes. Sheaks argued that US efforts to strengthen the BWC "should always proceed from that fundamental reality".⁶

Europeans Push for a Protocol

In contrast to developments in the United States, the Europeans have stepped up with their support for strengthening the Convention. It is understood that a number of European Union (EU) states have made representations in Washington in defence of a Protocol. In addition, the EU's General Affairs Council, meeting in Luxembourg on 11-12 June, adopted a recommendation on strengthening the BWC. The Council, composed of the fifteen member states' Foreign Ministers, reiterated the "high priority it attached to the successful conclusion, this year," of the Protocol negotiations, maintaining that the Chair's composite text had brought an agreement "within reach". The Council also underlined that the upcoming July-August AHG session would be of the "utmost importance". Addressing the broader political context of the issue, the Council noted that the Protocol talks were currently the only on-going multilateral disarmament negotiations: "from a wider perspective, the successful conclusion of these negotiations would send a positive signal demonstrating the international community's commitment to strengthening the multilateral disarmament and non-proliferation regime".⁷

On June 14, the European Parliament passed a resolution calling on all states parties "show maximum flexibility and readiness to compromise so that the short deadline may be met and a Protocol may be adopted" before the Review Conference, urging them to "support a compromise agreement based on the Chairman's text". The resolution called for elaboration of "the strongest possible", most "modern and open" verification regime "capable of adjusting to changing political climate and technical capabilities". It further invited the European Council to raise the matter with the US President at the Göteborg Summit in Sweden.⁸

Traces of the dissimilar European and American positions can be discerned in the rather modest language on the BWC in the Final Communiqué of the May 29 NATO Ministerial meeting. It is understood that securing the reference required some re-drafting exercises that 'watered down' the text. As a result, the communiqué makes a brief mention of the AHG, welcoming efforts to agree on possible enforcement and compliance measures to strengthen the Convention. NATO, the communiqué observed, saw biological weapons as "a growing threat" and remained "fully committed to pursue efforts to ensure that the BTWC is an effective instrument to counter" that threat.⁹

Conclusion

If the press reports turn out to be accurate and the United States rejects the Protocol and/or distances itself from the objective of concluding the negotiations by the Review Conference, it seems that the BWC is set to become established as another issue, along with the Kyoto Protocol and missile defence, on which there is radically different thinking on the two sides of the Atlantic. Having learned some lessons from the fiercely critical international reaction to its rejection of the Kyoto Protocol, it is unlikely that the United States will opt for a blunt rejection this time. Instead, it is more likely to pursue a more diplomatic or disguised course, perhaps seeking a new mandate for the AHG in the upcoming Review Conference. There is talk that the United States might propose a more 'stripped-down' regime consisting of basic non-compliance measures such as investigations. However, such an approach is hardly likely to go down well with many other delegations, particularly from developing countries which regard scientific and technological exchange and technical cooperation as an integral and essential part of the Protocol.

Whether blunt or disguised, the ramifications of the rejection would be very real, not only for the Protocol process but also to the multilateral arms control and disarmament process as a whole. There is genuine concern that if the negotiation process does now go sour, it will be difficult to gather sufficient political impetus to carry on after the Review Conference. All participants are aware that the stakes are high, and that they need to carefully think through their strategy for the July-August session and beyond. In order to elaborate an effective approach, the many defenders of the Protocol will need to know the exact nature of the US position as soon as possible.

Notes and References

1. Chemical & Engineering News Today, April 20, 2001.

2. 'US Germ Warfare Review Faults Plan on Enforcement', by Michael R. Gordon and Judith Miller, New York Times, May 20, 2001.

3. Phillip Reeker, Deputy State Department Spokesman, State Department transcript from daily press briefing, May 30, 2001.

4. For a summary of the composite text and analysis of delegations' reactions, see Jenni Rissanen, 'Hurdles Cleared, Obstacles Remaining: the Ad Hoc Group Prepares for the Final Challenge', Disarmament Diplomacy No. 56 (April 2001).

5. Donald Mahley, Special Negotiator for Chemical and Biological Arms Control, Head of the US AHG Delegation, Statement at the hearing on "The Biological Weapons Convention Protocol: Status and Implications" at the House Government Reform Committee, Subcommittee on National Security, Veterans Affairs and International Relations, June 5, 2001. For the testimony, visit the Federation of American Scientists (FAS) website at http://www.fas.org.

6. O.J. Sheaks, Assistant Secretary of State for Verification and Compliance, Statement at the hearing on "The Biological Weapons Convention Protocol: Status and Implications" at the House Government Reform Committee, Subcommittee on National Security, Veterans Affairs and International Relations, June 5, 2001. For the testimony, visit the FAS website.

7. The European Council conclusion on the Biological and Toxin Weapons Convention (BTWC), press release, June 11, 2001. http://ue.eu.int/newsroom/LoadDoc.cfm?MAX=1&DOC=!!!&BID=71&DID=66759&GRP=3552&LANG=1

8. European Parliament resolution on the Compliance Protocol for the Biological and Toxin Weapons Convention (BTWC), adopted on June 14, 2001. http://www3.europarl.eu.int/omk/omnsapir.so/calendar?APP=PV2&LANGUE=EN.

9. Final Communiqué of the Ministerial Meeting of the North Atlantic Council in Budapest, NATO press release, May 29, 2001.

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

© 2001 The Acronym Institute.