Disarmament Diplomacy

BWC Update

A Turning Point to Nowhere?
BWC In Trouble as US Turns Its Back on Verification Protocol

By Jenni Rissanen

Introduction

After over six and a half years of negotiations to draw up a verification and compliance mechanism for the Biological and Toxin Weapons Convention (BWC), the 24^th and final scheduled session of the Ad Hoc Group (AHG) of states parties ended in dismal and dismaying failure in the early hours of Saturday, August 18. The Group, with regular attendance from over 50 states, was mandated to complete negotiations on a Protocol before the Fifth BWC Review Conference later this year (November 19-December 7). It has not only failed to complete this central task, but also ended its work in an acrimonious and uncertain atmosphere, unable even to agree on its final report. Great uncertainty now hangs over the future of the Group, the Protocol, and the entire process of negotiating multilateral verification and enforcement provisions for the BWC.

Hopes of progress during the 24^th session (July 23 to August 17, 2001) were effectively dashed on the third day when the United States announced its rejection not only of the current draft Protocol - the Chair's composite text - but also of further efforts to negotiate such an agreement. With little or no willingness to continue negotiating without US participation, the AHG turned to the task of writing its report: an exercise far less vital than the Protocol negotiations, but still of potential importance to future chances of revivifying the process at the Review Conference and beyond. However, drafting the report quickly proved a difficult exercise, due principally to the desire of some countries to explicitly assign responsibility for the failure to agree a Protocol on the shoulders of the United States. Despite three weeks of drafting and discussions, the AHG failed to reach agreement on a report. In light of these serious and demoralising setbacks, efforts to strengthen the BWC are now in disarray, and discussions on the Protocol in other fora - notably the UN First Committee and the Review Conference - are likely to be turbulent.

AHG Convenes for 24^th Session

The Chair of the AHG, Ambassador Tibor Tóth of Hungary, opened the final scheduled session before the Review Conference on July 23. He recalled the developments in the previous session (April 23- May 11), and outlined what remained to be done in the four remaining weeks. The AHG had spent the 23^rd session in working on the Chair's composite text, a draft Protocol issued by Tóth on March 30, with a view to identifying the compromises and language most likely to attract agreement for a finalised Protocol. Tóth noted that further work was needed in six areas: definitions of terms; declarations; follow-up after the submission of declarations; measures to strengthen the implementation of Article III of the BWC; investigations and the Protocol's entry-into force formula.

In order to complete the work, Tóth felt three things were needed. First, to end the inflexible repetition of national positions - the issue was "not about who can maintain their position the longest" but about developing an effective Protocol. Second, the AHG needed to "consolidate" and "make the necessary final progress on the composite text". Third, as "the most difficult issues [were] not going to be wished away by any delegation", states parties needed to realise they had to now compromise "in order to gain in the long run collectively". In addition to resolving outstanding issues, the AHG needed to decide matters relating to the establishment of the Preparatory Commission, including its programme and budget, and the seat of the future implementing organisation - Geneva or The Hague. Finally, the AHG needed to draft its report to the Fifth BWC Review Conference.¹

Tóth recalled that most delegations had welcomed his composite text in the previous session. The first two days of this session also provided evidence of an increased and wider willingness to make final decisions on the basis of this text. South Africa was one of the first to declare in the 23^rd session that it was ready to work on the basis of the composite text, and hoped now that all delegations would "adopt the same approach".² Belgium reaffirmed the European Union's (EU) view that the composite text was "a basis on which political decisions could be taken".³ For Japan, the composite text was "the only practical basis at this late stage if we are to complete the negotiations by the target date".⁴ In addition, Brazil spoke on behalf of a large cross-regional group of 35 countries, saying that the composite text provided "the basis to conclude [the AHG's] work expeditiously" and reflected "a careful and sustained endeavour to reach comprehensive and balanced compromises". The 35 countries believed that the composite text made it "possible to deliver a useful and needed tool for strengthening the implementation" of the Convention.⁵

Even those few countries that had been reluctant in the past seemed to look on the composite text in a more positive light. For instance, Iran was "determined...to work towards a successful conclusion, ready to discuss the composite text".⁶ Cuba was ready to "participate in a negotiating process that should be carried on a responsible basis on" the composite text.⁷ India, whichhad remained silent on the composite text, said that the "fix" to the outstanding issues could "be found within the overall framework and thrust of the composite text".⁸ This brought the number of countries endorsing the composite text as a basis for concluding the negotiations to some fifty countries - nearly all of the AHG participants. Some of their colleagues, however, have suggested that some delegations may have rushed to endorse the Chair's composite text in order to 'score cheap points' ahead of an anticipated statement by the United States that would throw this session - and the whole Protocol process - into disarray.

The US Rejection: the Turning Point

On July 25, as expected and feared, the hammer blow fell: United States announced that the composite text was not acceptable to Washington and that there was no way of 'fixing' the text. To the shock of many, the United States also rejected the whole approach of having a legally binding Protocol to the BWC.

Ambassador Donald Mahley, the head of the US delegation, opened by stating that "no nation" was more committed to combating the biological weapons threat than the United States. The United States had now completed its review both of the Protocol text and the current and emerging threat from biological weapons and concluded that "the current approach to a Protocol" was not "capable of strengthening confidence in compliance with" the Convention: it would not improve the ability to verify compliance and would "do little" to deter countries seeking biological weapons. Mahley concluded that the United States would not support the Chair's composite text "even with changes, as an appropriate outcome of the Ad Hoc Group efforts". Instead of a Protocol, the United States would "develop other ideas and different approaches that...could help to achieve our common objective of effectively strengthening the [BWC]". Mahley shed no light on what kind of measures his government envisaged, saying only that the US would be exploring them in "the next coming months". Attempting to pre-empt the criticism that the United States was trying to unilaterally 'go-it-alone' when it comes to multilateral instruments on weapons of mass destruction, Mahley insisted that the United States stood by "all multilateral arms control, non-proliferation and export control regimes currently in force", pointedly citing as an example the Australia Group - a suppliers' regime controlling exports. The Australia Group, which has been criticised by a large number of developing countries as a discriminatory arrangement, has been a bone of contention in the BWC Protocol negotiations.

Mahley detailed some of the reasons why the United States had come to its decision. These, he suggested, were neither new nor surprising. The Protocol draft could not achieve the objective of covering illicit activity: there was no "great promise of providing useful, accurate and complete information to the international community". Trying to "do more" with regard to the mechanisms would only "raise the risk to legitimate [US] activities". Nor could the Protocol deter or complicate a "rogue" state's ability to conduct illicit activities. Furthermore, there was an "inherent flaw" in this approach to bio-defence: there was not sufficient protection of "sensitive legitimate acts". As for regular on-site activities - 'transparency visits' - they risked causing "damage" to innocent declared facilities, putting national security and commercial proprietary information "at risk". The United States could not agree to subject itself to such risks when there was "no corresponding benefit in impeding proliferation efforts around the globe".

Rather than identifying any 'inherent flaws' in the draft text itself, Mahley focussed on criticising other participants' demands, particularly calls to abolish existing export control arrangements. He underlined that the BWC was "a disarmament, not a trade treaty". Mahley also claimed that some AHG delegations were seeking "disturbing" outcomes, referring to attempts to "fix" the meaning of the Convention's terms - a probable reference to Russia's interest in definitions - as well as to investigations of disease outbreaks that the United States felt were too restrictive.

Concluding his ten-page rejection statement, Mahley assured delegations that the United States "understands and appreciates" the effort and compromises put into the Protocol process. The US had looked "for a set of specific changes that could alter our fundamental conclusions", but had found that this effort would not yield an outcome to which it could agree. Finally, Mahley rejected the argument that not having a Protocol would weaken the Convention, saying that his country remained committed to the search for ways to strengthen the regime.⁹

Restrained Reactions

Canada, Cuba, Japan and South Africa were the quickest to comment on the US announcement. Unsurprisingly, China, Cuba and Iran expressed the harshest criticism. In addition, the EU and the Non-Aligned Movement (NAM), as well as Australia, Argentina, Brazil, Mexico, Norway, Libya and Russia, all expressed varying degrees of disappointment.

Speaking on the day of Mahley's statement, Japan felt "obliged to express disappointment", while Canada "regretted" the US move. Canada reaffirmed its full commitment to the Protocol process, whereas Japan, urging everyone involved to act in a "calm" and "business-like" manner, said it needed a few days to reflect on the new situation.¹⁰ South Africa joined Canada and Japan in expressing its regret.¹¹ Cuba's reaction was harsher, arguing that the rest of the world was being held hostage to the "hegemonic" interests of the United States. It also suggested that the US bio-defense programs constituted "a source of concern" to it.¹²

Further reaction followed. On June 26, Belgium spoke on behalf of the EU and associated states (Bulgaria, Estonia, Hungary, Lithuania, Poland, Slovakia, Slovenia, the Czech Republic, Cyprus, Malta and Turkey). Norway later associated itself with the EU statement. Belgium said the EU had "listened attentively" and "noted with concern that the United States was of the view that the costs related to the Protocol would outweigh the benefit thereof". It did not share this conclusion. Nor did it share the US view that "nothing could make the composite text" acceptable. The EU regretted that the United States had adopted this position after six years of joint work. For its part, the Union wanted to preserve the fruits of that long effort. Despite its disappointment, the EU noted that the US had made clear it was not withdrawing its support from multilateral regimes, and that it continued to share the common objective of strengthening the BWC. The EU looked forward "with interest" to the promised "presentation of concrete proposals" by the US, which would hopefully be "such as to take us out of this stalemate in good time before the Fifth Review Conference".¹³

South Africa delivered the NAM's reaction the same day. The NAM regretted the fact that the US had come to the conclusion that the AHG's efforts "had not yielded an outcome that would be acceptable and that even further drafting and modification would not yield an acceptable result". The NAM assured the Chair of its "full and continued cooperation" and called on all states parties and "the major negotiating partner in particular" to continue to work in order to achieve the Group's objectives.¹⁴

The NAM statement was comparatively restrained in its criticism, but some NAM countries took a harder line individually. On July 26, Iran expressed regret that its political analysis of a few days earlier (July 23) had been proven correct: that the United States had "openly questioned the decisions made by consensus years ago, ignoring all rules of the game in international negotiations". The AHG was now faced with "a totally unjustifiable statement" from the US that questioned even the concept of a Protocol, a blow delivered "at the peak of satisfaction of a new cooperative atmosphere and momentum". Iran argued that the US move had interrupted the emergence of a consensus on two issues in the AHG "for first time in history": that this session would be the AHG's final meeting, and that the composite text - which Iran and others had been having a hard time accepting as the basis of the negotiations - "could be thoroughly discussed" with the hope of reaching consensus on a final text.

Iran scrutinised the United States' reasoning further, taking issue with the claim that US concerns had been ignored in the AHG and claiming that, had this position been made public years earlier, the AHG would have been spared a huge expense of time and energy. Iran further identified several contradictory views in the US statement. The United States had argued that the Protocol was about disarmament and not trade. Yet, Iran pointed out, it criticised Iran for requesting the deletion of references to commercial proprietary information (CPI) from the text. Iran also criticised the United States for appearing to give equal status to both multilaterally negotiated treaties, such as the NPT, CWC, BWC, and informal group export-control arrangements such as the Australia Group. Finally, Iran said it was ready to enter into serious businesslike negotiations on the composite text so as to conclude the AHG's work on time. However, to be effective, any Protocol would need active participation and adherence from all countries with advanced bio-technology capacity.¹⁵

Brazil responded to US criticism of the composite text by arguing that no treaty could be "absolutely fool-proof". However, "true political will" in disarmament and nonproliferation had to "be embodied in multilateral agreements if they are to have international legitimacy and become politically viable". In addition, to be effective, a verification regime needed to be universal, especially in the biological field, and a balance between verification and cooperation had to be struck. Brazil "firmly" rejected the idea that multilateral disarmament and nonproliferation treaties could be based "solely on verification".¹⁶

Like Brazil, Australia agreed that while no "absolute verification" was possible, the Protocol could bring "real security benefits raising the bar on biological weapons proliferation and making it more difficult for countries to cheat" on the BWC commitments. Australia said it did not share the US conclusion that the Protocol would put national security and confidential business information at risk - there were measures to protect against this in the envisaged text. Perhaps wanting to inject some realism into a fraught situation, Australia pointed out that the "fortunes of these negotiations rest on much more than this latest development in the US position", referring both to significant differences of views among other delegations and to countries that "never really projected a sense of urgency about the Protocol", or who favoured weaker compliance provisions or the abolition of export control mechanisms. Australia welcomed US Ambassador Mahley's assurance that there was no basis for claims that the United States did not support multilateral instruments to control or prohibit weapons of mass destruction and missiles, and said that it looked forward to "learning more from the United States about its progress in developing other ideas and different approaches".¹⁷

Argentina regretted the US position, but said it would now analyse the "various innovative ways" to proceed "which could legitimately be used to strengthen the verification regime for the Convention". It stressed the importance of universal participation in such a regime.¹⁸ Mexico said it had arrived at the session "with a will to negotiate, convinced that all the efforts and resources invested by the international community, from more than six years of intense work, should be concretised." The overwhelming majority of the AHG had expressed support for concluding the negotiations on the basis of the composite text. Mexico believed this was "a clear signal of the general will to conclude the Protocol". Thus, Mexico "deeply" regretted the US announcement.¹⁹

Russia expressed "disappointment and anxiety" over the US move, describing it as a "full rejection of the results of six years of work".²⁰ China delayed its first comment on the US double-rejection until the final day of the session. Claiming that "the position of one country... makes substantive negotiations impossible", China noted the US claim that it had not abandoned its commitment to strengthening the Convention in the multilateral framework. China would "wait and see" whether "such rhetoric [would] soon be translated into concrete actions". Like Iran, Beijing seemed sceptical about the US' commitment to the mandate. Although no one had challenged the mandate openly, China believed that this commitment would need "to be tested by time".²¹ Libya said that it was "very disappointed like many others".²²

Overall, reactions to the US announcement were relatively moderate, due to a combination of factors. Following a number of early press reports and rumours, the news did not come as a big surprise to anyone in the AHG. Some even considered that the US government could have deliberately leaked advance news of its intentions to the press in order to 'soften the blow' when the official confirmation came. The restraint of the initial reactions might also be explained by the desire of some countries to deflect attention from their own reluctance to embrace the Chair's composite text by having the AHG's report single out the United States and blame it for the Group's failure to fulfil its mandate. In addition, the fact that the US rejected not only the composite text but also further negotiating efforts created political shockwaves that have forced many countries to reassess their own positions.

Which Way Forward?

After some confusion and reflection, clarity on two issues seemed to have been achieved by the end of the second week. Countries would not 'do a Kyoto' and finalise an agreement without the United States. Many emphasised (mostly in private discussions) that the agreement would be meaningless without the United States, which had the biggest biotechnology industry in the world. Some diplomats also pointed to the domino effect non-US participation might create: without the United States, China and Russia and others would be unlikely to join, leaving only the 'Protocol-friendly' countries to 'police' each other.

The Chair convened a plenary meeting on August 3, following informal consultations with some thirty delegations. He focussed on three questions: first, whether there was sufficient willingness in the AHG to continue with the finalisation of the Protocol; Second, if not, what should be the next course of action; and third, the kind of report the AHG should transmit. Tóth found that the "overwhelming majority" of delegations had reaffirmed their support for the composite text as a basis for finalising the Protocol and for "continued efforts in the right direction". However, delegations also expressed the view that this was no longer possible. There was "readiness to negotiate" if the necessary conditions - US participation - were there. If not, it could be "counterproductive" - for both substantial and tactical reasons - to continue. Tóth then turned to the question of how to proceed in the absence of negotiations. Recent developments "did not mean that there was a loss of interest" in fulfilling the AHG's task. He had found a strong desire to preserve what had been achieved so far. Many delegations remained convinced that the work prescribed to the AHG "remains to be done" and the mandate "to be completed". In addition, in the course of his consultations, no one had objected to the validity of the Group's mandate.²³

A number of statements seemed to confirm Tóth's assessment. The EU had already spoken (July 26) in favour of "the maintenance of a multilateral forum of negotiation in the framework of" the Convention. France now argued that the abrupt termination of the AHG's 24^th session, "which in fact ended on 25 July", did "not put an end to the work" of the AHG. Rather, France believed that "a very broad majority...and perhaps all delegations would like to keep even beyond the Fifth Review Conference a multilateral negotiating process", and said it would support initiatives to this end.²⁴ Germany said the AHG could "not declare failure" and called for the continuation of the AHG process on the basis of the current mandate. Procedural decisions to be taken needed to be "forward-looking" and sufficient to "help us to continue the multilateral effort to strengthen the Convention".²⁵ Australia alsospoke about "preserving options for continuing efforts to strengthen the BWC".²⁶ Russia said it supported "the idea that the process of strengthening the Convention must continue", upholding "the view that the mandate...should not be changed and that the work should be continued": exactly how, however, needed further reflection.²⁷ Mexico thought the AHG should "explore every possibility for reaching agreement" to fulfil the Group's mandate.²⁸ India hoped the willingness to retain the mandate indicated that the AHG was "sadly closing a chapter" but "perhaps not the entire book".²⁹ A group of like-minded countries (Brazil, Chile, Ireland, the Netherlands, New Zealand, Norway, Peru and South Africa) called on the AHG to consider "methodologies or work to be undertaken further, on the basis of the mandate decided upon" in 1996.³⁰ Iran, however, seemed sceptical, repeatedly questioning whether everyone in the AHG still supported the mandate (a question that was pointedly directed towards the United States). In the absence of any explicit denial, Iran concluded that the mandate still commanded full support, insisting that this be reflected in the AHG's report.³¹

The AHG Report: Main Issues and Concerns

Given the evident unwillingness of delegations to continue discussions on the composite text, the AHG agreed to start drafting its final report. Tóth said the report would need to address major developments in previous sessions, such as the "origin and evolution" of both the rolling and composite texts, and to describe events in the current session. All delegations were hoping for a "simple and factual" report - but Tóth said he realised that these words had different meanings to different delegations.

One question that began shortly after the US rejection of the Protocol was whether the report should be addressed to the Review Conference or a special conference? The question related to wider disagreements over whether or not to convene a special conference. Two camps were visible: one arguing in favour of holding a special conference before the Review Conference, another opposing the suggestion on the grounds that the Group had not yet delivered a Protocol.

The group of like-minded countries (Brazil, Chile, Ireland, the Netherlands, New Zealand, Norway, Peru and South Africa) argued strongly in favour of holding a special conference. Citing previous consensus decisions by states parties which they said had been "clear on this point", the group suggested that such a conference would be "the venue where we are most likely to have a focussed and substantive consideration" of the AHG's work. The group suggested the week before the Fifth Review Conference as a possible date for the conference.³²

However, some countries disagreed strongly. Germany argued that the reference to the AHG submitting its report to a special conference, included in the Final Declaration of the Fourth Review Conference in 1996, "was made in view of a successful completion of work in between two Review Conferences". Since this was not the case, Germany wondered what the "object and the objective" of a special conference would be? In fact, might there not be a risk that such a conference could "put into question" the continuation of the AHG's work?³³ Australia associated itself with Germany's statement. Japan took the same line: the 1996 documents talked about 'completion' of the AHG's work. Japan was surprised at the interpretation of the 'like-minded countries', feeling that this represented a "misunderstanding" of the issue.³⁴ Although France did not express its view explicitly on this point, it reportedly endorsed Japan's view. Cuba, Iran and Libya likewise felt the report should go to the Review Conference.

Though it made no statement on the issue, the United States was believed to oppose a special conference out of concern that it would highlight its rejection of the Protocol. In addition, holding a special conference would present another opportunity for other countries to demand that the United States present the 'other ideas and different approaches' promised in its July 25 statement - something which the United States would likely be reluctant to do. Following its rejection, and annoyed by some western governments' desire to hold a special conference, the United States reportedly sent demarches (official diplomatic representations) to the governments of the Western Group, demanding (among other things) that they present a united front on the question of a special conference. The US wanted a 'clear-cut' report, omitting any references to holding a special conference, or to decisions on the AHG's future. It appeared to many delegations that the US wanted to avoid having to specify how, or in which forum, if any, it planned to continue efforts to strengthen the BWC.

South Africa expressed frustration at the whole debate, saying it was "overwhelmed by a sense of surrealism": only a week ago, there had been great like-mindedness about supporting the Protocol and strengthening the BWC. Now, the AHG was struggling over the issue of the addressee, a procedural question that was not to be answered "emotionally" or "too quickly". The Group should not let the issue divide it, but work instead on the basis of what united delegations. South Africa called on the Group to seize upon the fact that no one had directly rejected the mandate or continued work on the Protocol. ³⁵

A Final Failure: the Report Slips Away

The Chair issued a first draft of its report on August 6. The draft focussed on developments from 1996 to the 23^rd AHG session. This 'backward looking' portion of the report consisted largely of agreed language from past documents, the AHG's procedural reports from previous sessions, including its report from the fifth session just prior to the Fourth Review Conference in 1996, and the Final Document of that Conference.

The Group addressed the controversial parts of the report - the mandate-related paragraphs, the paragraph describing the events in the 24^th session, and the 'forward-looking' formulations - during the final week. On August 13, the Chair suggested that the AHG first tackle questions surrounding the mandate. He then circulated a proposal on this: an in-room paper setting out a one-paragraph formulation stating that the AHG "was unable to fulfil its mandate by completing its work and submitting its report including a draft of a legally-binding instrument to the states parties to the Convention. Thus the mandate remains valid." Some delegations had immediate comments. The EU suggested alternative wording, preferring to say the AHG had "not yet" fulfilled its mandate, therefore conveying an expectation that work would resume. In its statement on Monday, the EU stressed that "the objective of the [AHG] as defined in its mandate...retains all of its relevance". The Union believed the "best means to achieve this objective" was the "continuation of the work of the [AHG] beyond the Fifth Review Conference".³⁶

South Africa was not happy with either the EU's formulation or that of the Chair. Believing both to be too vague, South Africa sought tighter language, not leaving the future of the AHG open-ended and thus hostage to fortune. In addition, some NAM delegations, including Cuba and Iran, reportedly wanted to see the remaining parts of the reportbefore making their minds up on the Chair's proposal on the mandate, thus appearing to create a link between the mandate-related section and the descriptive part of the report.

The Chair redrafted his proposal, taking into account the comments. The new wording read that the AHG "has not yet been able to fulfil its mandate", ending with a reaffirmation that "The mandate remains valid". A reference to the 1994 Special Conference was also added. But matters were now moving fast. Wednesday afternoon's informal meeting (August 15) saw yet another proposal by the Chair. The third version read: "The Ad Hoc Group has not been able to fulfil its mandate, since by the end of the twenty-fourth session it was not able to complete its work and submit its report, to be adopted by consensus, including a draft of a legally binding instrument to the states parties to the Convention. This mandate, as agreed by the Special Conference in 1994 and set out in paragraph 6.1. remains in force and determines any future work of the Ad Hoc Group."

The new proposal did not, however, satisfy the EU, which reportedly still wanted to hold onto the word "yet" - or "to date" - in the first sentence. The United States, for its part, suggested the deletion of all reference to the mandate, wanting the paragraph merely to state that the AHG was unable to complete its work and to submit its report, including a legally-binding instrument, to the states parties to the Convention.

Finally, the following afternoon (August 16), the following text was agreed: "The Ad Hoc Group has not been able fulfil its mandate, since by the end of the twenty-fourth session it was not able to complete its work and submit its report, to be adopted by consensus, including a draft of a legally-binding instrument to the states parties to the Convention. This mandate, as agreed by the Special Conference in 1994 and set out in paragraph 6.1, remains in force and determines future work of the Ad Hoc Group".

Thursday afternoon also saw the beginning of discussions on the forward-looking elements. The EU suggested that the AHG invite "the states parties to the Convention to consider the work of the ad hoc group, this report, and the future course of action, with a view to fulfilling its mandate". Earlier, Iran had wanted the report to clearly spell out that "the Ad Hoc Group shall continue its work to fulfil its mandate". On Thursday, however, in a joint proposal with Cuba, Iran suggested that the AHG "recommend" the Fifth Review Conference "to consider this report for appropriate action with a view of fulfilment of the mandate". On August 17, the last scheduled day of deliberations, the Chair proposed a compromise proposal, which was later accepted: "The Ad Hoc Group invites the Fifth Review Conference to consider the work of the Ad Hoc Group, including this report, and how the Ad Hoc Group can fulfil its mandate".

South Africa reintroduced the question of a special conference on Thursday afternoon, proposing that the report include an invitation to the states parties to consider convening such a meeting sometime after the Review Conference (rather than the week before, as previously proposed). The suggestion caused difficulties for several western delegations. The main argument against was that any reference to a special conference after the Review Conference appeared to prejudge the outcome of that Conference as a failure. In the end, on grounds that any reference to a special conference by the AHG would only be advisory, since only the states parties could in practice take such a decision, the AHG agreed to incorporate a separate paragraph stating the following: "The Ad Hoc Group invites the states parties to the Convention to consider the possibility of convening a Special Conference, if appropriate, after the Fifth Review Conference".

With this question settled, two issues remained: a reference to multilateral negotiations, and, most controversially, the description of the 24^th session. Iran and Cuba, in particular, wanted language on multilateral negotiations, probably in anticipation that the 'alternatives ideas' promised by the US would not encompass true multilateral or negotiated measures. Some western delegations were suspicious of the Iran-Cuba stance, perhaps fearing that the underlying motive was to achieve a reference implicitly undermining the Australia Group. Nevertheless, the value of such a reference for western delegations was plain, as many of them, including the EU, had expressed their expectation that efforts to find a Protocol would continue in the context of multilateral negotiations. The NAM and the Western Group engaged in a drafting exchange on a paragraph suggested by the Chair. The NAM strengthened the Chair's text, and after some proposed modifications by the Western Group, the two groups agreed on the following language: "The Ad Hoc Group stated that an effective legally-binding instrument agreed through multilateral negotiations undertaken in the framework of the Convention will strengthen the Convention".

But after agreeing and adopting all the above formulations ad referendum, things got complicated. This became evident when the Chair took up a paragraph describing the events at the 24^th session. The NAM and the Western Group apparently had different perceptions as to how the AHG should proceed.

The Chair's paragraph stated that delegations had "expressed their views in national and group statements on the work of the Ad Hoc Group and its completion as soon as possible before the commencement of the Fifth Review Conference. After undertaking intensive consultations, the Chairman informed the Ad Hoc Group that there was no consensus for continuing negotiations to that effect...The Ad Hoc Group proceeded to drafting its procedural report". At the heart of the difficulties concerning this description lay a dispute between countries - chiefly Cuba and Iran - which insisted on naming the United States, and the United States itself, which adamantly opposed any such reference, even at the expense of not finalising the whole report.

Iran took the floor to say that something was 'missing' from the Chair's proposal, and asking that the US statement of July 25 be reflected in it. This reportedly took the Western Group - expecting to adopt the text as it stood - by surprise. South Africa, the co-ordinator of the NAM, complained that it had been promised a break for informal consultations before proceeding to this paragraph. Chile, Mexico and Brazil made a 'middle-ground' suggestion: that instead of naming countries, the report should talk about "one delegation". Cuba and Iran had seemed willing to accept this. A number of western delegations emphasised they were only prepared to accept the text as it stood. South Africa insisted that the NAM had not been asked to treat the issues together. The meeting was suspended for further consultations.

Following the break, the Western Group reportedly asked that the text be put to a decision - without the paragraph on the 24^th session. After a further break, the NAM said it could not accept this proposal. As an alternative, it suggested that in exchange for keeping the Chair's proposal intact, the statements of the 24^th session could be attached to the report. This was not accepted by the Western Group, which was understood to dislike the precedent such action would create.

As a last resort, when it was clear all other avenues had been exhausted, Tóth proposed that the AHG adopt a single-paragraph report, consisting only of the earlier agreed paragraph on the Group's mandate. Although the Western Group was ready to accept this stand-alone proposal, a number of NAM countries rejected it as being insufficient. With all realistic hope of agreement now lost, accusations began to fly. South Africa reportedly appealed for yet another attempt to be made. Germany, representing the views of various others as well, argued that no such effort could now bring results. Expressions of regret started to pour in and the Chair closed the session, compelled to declare that there was no report.

Conclusion

This dismal outcome was met with differing degrees of disappointment. On one hand, there was a realisation that the report would not have been binding with regard to the AHG's future. On other hand, it would have 'put on record' some important agreements: most notably, that the AHG considered its mandate still to be in force and yet to be fulfilled. In addition, the report would have emphasised the principle of multilateral negotiations and recognised the two texts - the rolling text and the Chair's composite text - as the products of the six and a half years of negotiations. With the question of blame taking over, these potential gains were lost. The United States, ironically, may have gained most. In addition to succeeding, by getting others to fight for its position, in not being singled out - although this would have done little to help the Protocol - the battle over the report also served to illustrate the depth of divisions in the AHG as a whole.

With no common ground to build on, discussions in other fora, such as the First Committee and particularly the upcoming BWC Review Conference, on efforts to strengthen the Convention will be burdened with major obstacles from the outset. Agreement was near in the AHG that the Group's mandate was still valid and that the efforts should continue, but the true test will be the Review Conference. What kind of agreement can now be envisaged there, given the Bush administration's rejection and the political games played by some other states parties?

The number of chances to get the process back on track will be limited. The various countries who have spoken in favour of finishing the task will need to come to the Review Conference well prepared and ready to fight in order to avoid being held hostage again by a small number of countries. They will need to develop a more coherent strategy and stand firm if they want to rescue the Protocol. The stakes are now very high. What happens to the Protocol process will have an impact not only on how effectively the international community can implement its ban on biological and toxin weapons, but also on multilateral arms control and collective security across the board.

Notes and References

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

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

3. Marc Baptist, Deputy-Director-General of Political and Multilateral Relations, Ministry of Foreign Affairs of Belgium, July 23, 2001.

4. Seiichiro Noboru, Ambassador of Japan, July 23, 2001.

5. Celina M. Assumpção do Valle Pereira, Ambassador of Brazil, July 23, 2001.

6. Ali Ashgar Soltanieh, Ambassador of Iran, July 23, 2001.

7. Anayasi Rodríguez Camejo, Second Secretary, Permanent Mission of Cuba, July 24, 2001.

8. Rakesh Sood, Ambassador of India, July 25, 2001.

9. Donald Mahley, Ambassador of the United States, July 25, 2001.

10. Seiichiro Noboru, Ambassador of Japan, and Christopher Westdal, Ambassador of Canada, July 25, 2001.

11. Peter Goosen, Chief Director, Non-Proliferation and Disarmament Section, Department of Foreign Affairs, South Africa, July 25, 2001.

12. Anayasi Rodríguez Camejo, Second Secretary, Permanent Mission of Cuba, July 25, 2001.

13. Marc Baptist, Deputy-Director-General of Political and Multilateral Relations, Ministry of Foreign Affairs of Belgium, July 26, 2001.

14. Peter Goosen, Chief Director, Non-proliferation and Disarmament Section, Department of Foreign Affairs, South Africa, July 26, 2001.

15. Ali Ashgar Soltanieh, Ambassador of Iran, July 26, 2001.

16. Celina M. Assumpção do Valle Pereira, Ambassador of Brazil, July 26, 2001.

17. Lesley Luck, Ambassador of Australia, July 26, 2001.

18. Horario Emilio Solari, Ambassador of Argentina, July 30, 2001.

19. Gustavo Albin, Ambassador of Mexico, August 3, 2001.

20. Gennady Lutay, Russian Ministry of Foreign Affairs, July 26, 2001.

21. Hu Xiaodi, Ambassador of China, August 17, 2001.

22. Statement from a member of the Libyan delegation, August 3, 2001.

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

24. Hubert de la Fortelle, Ambassador of France, August 3, 2001.

25. Stefan Kordasch, First Secretary, delegation of Germany, August 3, 2001.

26. Lesley Luck, Ambassador of Australia, August 3, 2001.

27. Gennady Lutay, Russian Ministry of Foreign Affairs, August 3, 2001.

28. Gustavo Albin, Ambassador of Mexico, August 3, 2001.

29. Rakesh Sood, Ambassador of India, August 3, 2001.

30. Clive Pearson, Ambassador of New Zealand, August 3, 2001.

31. Ali Ashgar Soltanieh, Ambassador of Iran, August 3, 2001.

32. Clive Pearson, Ambassador of New Zealand, August 3, 2001.

33. Stefan Kordasch, First Secretary, delegation on Germany, August 3, 2001.

34. Seiichiro Noboru, Ambassador of Japan, and Christopher Westdal, Ambassador of Canada, August 3, 2001.

35. Peter Goosen, Chief Director, Non-proliferation and Disarmament Section, Department of Foreign Affairs, South Africa, August 3, 2001.

36. Damien Angelet, Counsellor, Delegation of Belgium, on behalf of the EU, August 13, 2001.

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

© 2001 The Acronym Institute.