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Disarmament DiplomacyIssue No. 62, January - February 2002BWC ReportLeft in Limbo: Review Conference Suspended On Edge of CollapseBy Jenni Rissanen See also: The Draft Final Declaration Introduction The Fifth Review Conference of the Biological and Toxin Weapons Convention (BWC) closed, as it had opened, in eventful and acrimonious fashion. Proceedings began on November 19 with accusations of biological weapons development and ended on December 7 with the unexpected and unprecedented suspension of deliberations. Although the suspension was unanticipated, the issue - the future of the Ad Hoc Group (AHG) in charge of negotiating a verification Protocol - prompting the adjournment was not. In the late afternoon hours of the final day, the United States proposed that the Conference's Final Declaration terminate the AHG's mandate, thereby attempting to permanently finish the more than decade-long process to strengthen the Convention. The Protocol negotiations had already suffered a severe blow in July 2001, when Washington rejected the draft Protocol and ruled itself out of further negotiations. The US proposal at the Conference angered other delegations not only because of its controversial content but also because of its late introduction, less than two hours before the meeting was scheduled to end. In a highly charged atmosphere, the ninety-one states parties present decided to prevent outright failure by adjourning the Conference until November 11-22, 2002, allowing a year's 'cooling-off' period. The states parties will then have in front of them a nearly finalised draft Final Declaration, negotiated over the three weeks of laborious and - with the exception of the first and last day - generally calm deliberations. This report details the many twists and turns of the Review Conference, analysing the extent to which agreement lay within reach of delegations until the final 'ambush' by the US, and documenting the substantial broader differences of perception and priority between states parties, running far deeper than a simple split between Washington and the rest. An Acrimonious Opening to the General Debate The Conference got off to a discordant start on the first day, with the United States using its general statement to accuse Iraq, Iran, North Korea, Libya, Sudan and Syria of operating clandestine biological weapons (BW) programmes. Beyond angry reactions by some of the accused states parties, the rest of the two-day general debate proceeded fairly calmly. Delegates heard over thirty statements, as well as a message from the UN Secretary-General, all stressing the need for action to strengthen the ban on biological weapons and - in the light of the events since September 11 - to prevent bio-terrorism. However, the statements also illustrated fundamental differences in approach and divergent expectations regarding the Conference, especially with regard to the future of the AHG and the Protocol. A message from UN Secretary-General Kofi Annan, delivered by Under-Secretary-General for Disarmament Affairs Jayantha Dhanapala, signalled the opening of the general debate. Dhanapala told delegates the Secretary-General thought preventing the use or threat of use of BW "was more important than ever": the "horrific attacks" of September 11 "could have been far worse if weapons of mass destruction had been used". The challenge for the international community was "clear: to implement, to the fullest extent possible, the prohibition regime offered by the Convention". Obstacles had to overcome if this goal was to be realised. The statement referred to the AHG's inability to conclude a draft Protocol, the lack of universal participation in the Convention, and the limited number of states parties submitting information on their activities as a confidence-building measure (CBM), as well as expressing grave concern at the violation of the norm against BW through the recent use of biological agents (anthrax) to create chaos and terror. The full implementation of the Convention had to be given "higher priority", national legislation needed to be "tightened" and the acquisition or use of BW had to be criminalised. Furthermore, the international community needed to stand ready to assist member states "should prevention fail", and the UN was ready "play a coordinating role in this regard". The renewed global focus on terrorism had brought concerns about BW to the fore: "Missing this opportunity, given difficulties in negotiations on other [WMD], would only exacerbate the current crisis in multilateral disarmament diplomacy in general". The statement urged delegates "to come together, overcome your differences, and take these next crucial steps in history of this landmark Convention".1 The United States, the second delegation to take the floor, delivered an explosive and provocative statement. Tackling head on the central and controversial issue of non-compliance, John Bolton, Undersecretary of State for Arms Control and International Security, accused four states parties - Iraq, Iran, North Korea and Libya - plus Sudan (non-state party) and Syria (signatory) of operating clandestine BW programmes. In addition, Washington was "concerned about the use of biological weapons by terrorist groups". Ranking these threats, Bolton noted that, beyond al Qaeda, "the most serious concern" was Iraq, whose programme remained "a serious threat to international security". Bolton believed that Iraq had used the three years since the last UN inspections "to improve all phases of its offensive BW program". North Korea's programme was also "extremely disturbing": the United States believed it was operating a "dedicated, national-level effort to achieve a BW capacity and that it has developed and produced, and may have weaponised BW agents". The BWC, Bolton concluded, had simply been "ineffective in restraining North Korea". Washington was also "quite concerned about Iran", which it believed had "probably" produced and weaponised BW agents. It also thought both Libya and Syria had an "offensive BW program in the research and development stage", and may be "capable of producing small amounts of agent". The US was additionally "concerned about the growing interest" of Sudan in developing a BW programme. Bolton added that this list "was not meant to be exhaustive", but rather to demonstrate the "real challenges left unaddressed" by the Convention. There were other states that the United States could have named, and which it would be "contacting privately". Bolton called on all BWC parties and signatories to "immediately terminate their programs and comply fully with their obligations". The decision to 'name names', an unorthodox diplomatic proceeding, took many delegates and observers by surprise. There was a feeling that the accusations only compounded the already tense and bitter atmosphere left over from the derailed final session of the AHG in July/August. Some suspected that Washington had decided to open with " a big bang", reasoning, in view of the likelihood it would be heavily criticised for its rejection of the Protocol, that the best form of defence was attack. Certainly, the rest of the statement was equally 'on the offensive'. Stressing that the United States had "repeatedly" made clear why the "arms control approaches of the past" would not resolve current problems, Bolton suggested the draft Protocol would have given proliferators "a stamp of approval". The United States would "not enter into agreements that allow rogue states or others to develop and deploy biological weapons". It would therefore continue to reject "flawed texts" like the draft Protocol, "recommended to us simply because they are the product of lengthy negotiations or arbitrary deadlines" but which were "not in the best interests of the United States and many countries represented here today". Bolton claimed that although the United States had been criticised by many foreign governments for rejecting the Protocol, "many of those same governments" had told the United States "privately" that they "shared America's reservations". 2 Following the statement, Iran, Iraq and Libya exercised their right of reply, rejecting the US accusations as groundless. Iraq claimed its biological weapons programme had been destroyed as part of the disarmament mandate of the UN Special Commission (UNSCOM), and feared it was about to be attacked by the United States on the pretext of proliferation concerns.3 Libya said the allegations were "nothing new" and asked the United States not to use the Conference as "a launching pad for accusations", since this would only damage the prospect of reaching consensus.4 Iran rejected the accusations "categorically", adding they would lead to confrontation rather than cooperation. Indeed, Iran suspected this might have been the intention, since the US was clearly opposed to multilateralism.5 Back on Track: the Rest of the General Debate Aside from these fireworks, the general debate proceeded in a composed manner. Most, if not all, countries began their statements by condemning the September 11 terrorist attacks and expressing anxiety over the anthrax letter mailings and bio-terrorism in general. Many countries, ranging from European Union (EU) states to Iran, felt these incidents underscored the need for strengthening the Convention, and indeed multilateral disarmament and non-proliferation efforts as a whole. All countries agreed that the Conference was taking place at a critical juncture, with rapid advances in science and technology posing challenges to the BWC regime that needed to be addressed. While addressing a multiplicity of issues, including universality, compliance, scientific and technological co-operation, and export controls, the derailed negotiations on a verification Protocol soon emerged as the dominant theme. With the exception of the United States, countries generally regretted the AHG's inability to conclude its work, or even to draft a procedural report, in time for the Review Conference. With some exceptions, countries seemed to have put bitterness over the US rejection behind them. China called, however, the US position "neither fair nor reasonable".6 Cuba feared the US had "forced us to move ten years back", arguing that Washington's new stance was "completely inconsistent with the [US] delegation's strong previous demands to ease several of its [the draft Protocol's] clauses, only to reject it afterward invoking, among other reasons, its weaknesses".7 When it came to how best to strengthen the Convention, approaches varied greatly. Some delegations wanted to reconvene the AHG, while others, including many western countries, resigned to the very remote possibility of reconvening the AHG in the near future, spoke more vaguely of the importance of multilaterally agreed and legally-binding measures. Generally, there was a willingness, particularly on the part of the moderate players, to 'move on' and try to accomplish what was 'realistically achievable' in current circumstances, but without abandoning the AHG altogether. This included taking onboard some of the US proposals. The AHG certainly had numerous staunch supporters. Norway remained convinced that the Group had to "continue its valuable work and carry out the mandate it was given"; a multilaterally agreed legally binding instrument was "needed more than ever to fill the existing gap in the non-proliferation regime.8 New Zealand thought it was premature to "abandon the pursuit" of the Protocol when a number of options were available to "deliver compliance and accountability", including taking forward the 1994 AHG mandate, exploring other options for work on declarations and cooperation assistance, and identifying other means to facilitate consideration of compliance issues, including the possibility of subsidiary bodies or an oversight committee.9 The EU considered it "essential" that the Group's mandate remain "fully in force" and was "successfully implemented", but stopped short of saying the AHG should be reconvened. The Union proposed that countries take the opportunity of the Conference "to give new impulse to our work by defining a series of commitments and additional measures that states should adopt in order to strengthen the implementation of the Convention".10 One EU country, Britain - one of the Convention's three depositary states, along with the US and Russia - thought member states now had to "set aside their disappointment and frustration and look to the future". States parties still needed to "take forward a multilateral negotiating body" and "seek measures which are legally binding rather than voluntary" or limited to "declaratory exhortations". Britain suggested a number of measures for the Conference to consider, some of which could be "wrapped up" into a multilaterally agreed process.11 Switzerland still believed that "when the time comes, we must accomplish the work of the ad hoc group drawing the lessons from the past", and asked the Conference to "put in motion a process to deepen our understanding of the follow-up of our work and of the direction of our future efforts to strengthen the Convention". The AHG's existing mandate was "flexible enough" for a reactivation of the negotiations, taking into account the new challenges.12 Canada said it was "anxious to move on" from the rejection of the Protocol, but only "with full access to our memories, our files, our papers, our conference records and all the research and creative policy development of the AHG". All of the composite text's elements were "still available for our review and our consideration, re-calibration and re-balancing in new effort". Canada wanted "an outcome providing a renewed undertaking for multilateral negotiations" on preventative measures.13 Many western countries, while continuing to embrace the basic approach of multilateral negotiations, were open to "agreeing to some new, practical measures to strengthen the Convention in the short term", as suggested by Australia who felt the Conference had "no option but to be forward-looking".14 Japan was ready to consider and support any proposals which aimed at enhancing the validity of the Convention. In this connection, it supported strengthening existing disease control and enhancing the mechanism for dispatching disease-outbreak response teams. However, "these measures alone" could not strengthen the Convention.15 China, Cuba, Iran, Indonesia, Libya and Pakistan - which last year were all among those states resisting attempts to impel the AHG process into a final phase by moving the basis of talks from the heavily bracketed 'rolling text' to the Chair's compromise 'composite text'16 - now appeared to be among those countries most eager to reconvene negotiations. Iran said it "still insisted on the validity of the [AHG's] mandate" and announced its "readiness for continuing negotiation in a multilateral framework". In Iran's estimation, states parties would require one year to complete the task, which should be recommenced promptly after the Conference. While expressing itself as open-minded with regard to constructive proposals, Iran warned that any approaches which opened a "new avenue" or undermined the fruits of seven years of work would be "a humiliation and an insult to all states parties involved". Iran would not allow its "credibility and maturity" in supporting the AHG negotiations to be questioned, and was not prepared to let the collective endeavours of the last decade "be ignored and considered in vain".17 Like Iran, Cuba was "convinced" the AHG's mandate remained "fully valid", adding that the fight against bio-terrorism "should not be detached from the premises of multilateralism".18 Pakistan believed the AHG "should resume its work with an organisational meeting as soon as possible", enabling it to "wrap up its work on a positive note": countries should not "underestimate [their] capabilities to work out solutions acceptable to all".19 China was disappointed that the "protocol that had great hope of conclusion" was now facing a "threat of being scrapped". However, it was "glad to note that the overwhelming majority of states parties still stand for maintaining the existing mechanism and mandate of the [AHG] and support continued negotiations within a multilateral framework". China was ready to "make joint efforts...to this end".20 Indonesia thought it was "incumbent" on states parties "to continue negotiations in the [AHG] in order to finally reach the necessary consensus on the protocol".21 These states were not alone in believing the AHG should be reconvened to finish its task. Russia was "deeply concerned" that the Protocol had not been completed "due to events...well known to everybody present here". As far as Russia was concerned, a Protocol remained the most effective means of strengthening the BWC, and the AHG mandate was thus still valid. Multilateral negotiations needed to resume as soon as possible: the AHG should reconvene as early "as the first half of 2002".22 Croatia hoped to see negotiations back "on the right track" through "the immediate re-commencement" of the AHG's work "in whatever form delegations see fit".23 The Rio Group (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, the Dominican Republic, Uruguay, Venezuela and Guyana) expressed the hope that the Conference would "reiterate" the AHG's mandate so that negotiations on the Protocol could be finalised". Only a multilateral format would provide "true reinforcement of the Convention".24 The US position stood in stark contrast with the others. Having rejected the Protocol, the United States introduced its alternative plan for tackling the BW threat, first outlined by President Bush on November 1.25 Undersecretary Bolton stressed the importance of national implementation measures, including arrangements to enhance criminal extradition agreements with respect to BW offences and legislation making it a criminal offence for persons to engage in activities prohibited by the BWC. Furthermore, he believed that countries should (a) adopt and implement regulations restricting access to dangerous micro-organisms, as well as on domestic and international transfers; (b) report internationally any releases or adverse events that could affect other countries; and (c) sensitise scientists to the risks of genetic engineering, explore national over-sight of high-risk experiments and establish a code of conduct for scientists working with pathogens. The United States is also seeking the elaboration of a mechanism for international investigations of suspicious outbreaks of disease or alleged BW incidents. Countries would need to "accept international inspectors upon determination by the UN Secretary General that an inspection should take place". Washington also advocated "setting up a voluntary cooperative mechanism for clarifying an resolving compliance concerns by mutual consent". Under the heading of assistance to victims and technical and scientific cooperation, Bolton proposed that countries "adopt and implement strict biosafety procedures, based on WHO [World Health Organisation] or equivalent national guidelines", support the WHO's global disease surveillance and response capabilities, and develop a capacity for rapid emergency medical and investigative assistance in the event of a serious outbreak of infectious disease. Taken together, this range of measures to restrict access, strengthen international disease detection tools, and provide assistance in the event of an outbreak would "enhance collective security and collective well-being" 26 The 'alternative' US proposals were greeted with little excitement by others. Overall, several countries generically referred positively to 'new ideas' and supported steps such as the criminalisation of activities by individuals that ran counter to the Convention, bio-safety measures, and limiting access to dangerous pathogens, all of which were included in the US proposals. It was also generally acknowledged that the BW threat required both national and international responses. India, for example, advocated a three-fold strategy with both national and multilateral components: states parties needed a "multilaterally negotiated legally binding instrument that constitutes the life boat as well as individual life-jackets in the form of national level measures". This meant strengthening the Convention "in accordance with the 1994 mandate", enhancing national controls on production, acquisition, storage, handling, transfer and use of dangerous pathogens, as well as bolstering international cooperation and assistance. "Cherry-picking" elements from the rolling or composite text was "unworkable". New ideas were welcome as long as they did not "involve the jettisoning the 1994 mandate, but strengthening it through additional measures". 27 Pakistan was one of the few countries to explicitly comment on the specific suggestions put forward by Bolton, saying the US had put forth some "interesting proposals" on technical and scientific cooperation, which Pakistan was considering with "an open mind". 28 Ukraine believed that it was surely possible to accommodate both existing suggestions for developing the Protocol and the new US ideas. All proposals, Ukraine suggested, could be compiled "into one unified document for further consideration". 29 With hopes dim for agreement on the AHG, and given ongoing and rapid advances in biotechnology, many countries argued that states parties needed to meet more frequently. There was talk of annual meetings of states parties, preparatory committee meetings for the next Review Conference in 2006, and expert meetings. In the absence of an Organisation for the Prohibition of Biological Weapons (OPBW), calls were made for an interim supporting structure to facilitate and advance the Convention's implementation. Japan supported a "strong follow-up mechanism...in whatever format including a preparatory meeting for the next Review Conference or an annual meeting of the states parties".30 Norway wanted to strengthen the framework of the Convention through "more regular meetings" and "other types of intersessional work".31 South Korea thought the idea of establishing "some kind of an intersessional mechanism to strengthen the follow-up process deserved serious consideration".32 Stressing the accelerating pace of science and technology, Britain proposed that states parties "establish a mechanism...to work together on a more frequent basis to conduct scientific and technical reviews and to consider any implications at the necessary level of expertise". The UK proposed setting up a scientific advisory panel to monitor scientific and technical developments, to meet at least on an annual basis.33 Australia supported the holding of annual meetings to "ensure that the international community continues to work together" in the fight against biological weapons.34 Canada wanted open-ended intersessional institutions to oversee implementation work.35 The International Committee of the Red Cross (ICRC) said it was time to "equip" the Convention with "at least a modest structure capable of monitoring relevant technological and other developments, encouraging universalisation, promoting implementation of already agreed confidence building measures and preparing for future Review Conferences". It supported the idea of regular meetings between the Fifth and Sixth Review Conferences.36 The question of universality was frequently addressed. New Zealand believed the Conference should "first and foremost" commit to engaging those outside the Convention to come onboard without conditions or further delay.37 Iran urged all biotechnologically "advanced and capable" non-states parties to accede, reminding delegates of its "bitter experience" with the Chemical Weapons Convention (CWC), which Iran had ratified with an expectation that others would do the same, particularly in the Middle East.38 Pakistan was dissatisfied not only at the failure to achieve universality, but also at the poor attendance at the last Review Conference and the AHG (some 50-60 countries). Since it considered this partly due to financial considerations, Pakistan urged the Conference to look into the matter.39 Albeit in less blunt language, a number of states echoed US concerns over possible non-compliance, mentioning in this context the inability of the UN Monitoring, Verification and Inspection Commission (UNMOVIC) to begin its work in Iraq. Britain said there were "still unfortunately questions over whether some states parties fully meet all their obligations".40 Australia was concerned about reports suggesting some states parties had undertaken BW research, development, production or stockpiling in the past five years.41 Iran expressed concern over the fact that the BWC did not prohibit the use of BW. To correct this loophole, it proposed that states parties decide either to insert the word "use" in the Convention's title and Article I, or require those countries who still maintain reservations to the 1925 Geneva Protocol to withdraw them.42 Others, including the EU and the ICRC, joined Iran's call for countries which still maintained reservations to the Geneva Protocol to withdraw them. Russia reminded the states parties that it had withdrawn its reservations on December 6, 2000.43 Canada spoke for many when it said that participation in the Convention's various confidence-building measures had been "disappointing". This highlighted "the shortcomings of a voluntary approach": states parties needed "to get some law on our side".44 The EU proposed that "some" of the politically binding CBMs be made legally-binding, but did not specify which.45 Britain suggested additional CBMs be created.46 As one possibility, South Africa wanted states parties to declare facilities working with animal and plant pathogens.47 Many developing countries highlighted the importance of scientific and technical cooperation, stressing the issue of adequate and equitable technology transfers. Pakistan referred to Article III (non-transfer of agents, toxins, weapons or delivery vehicles), taking exception to "positions that, invoking this Article, seek to justify selective implementation of the Convention", creating distrust and raising doubt about "the very rationale of negotiating and concluding international legally binding instruments" such as the Protocol.48 Iran argued that the preservation of national export controls and "arbitrary" parallel regimes after the entry into force of a Protocol would cause "serious damage". Iran described the regulations of the Australia Group (an informal export controls regime operated primarily by western countries) as "unilateral, discriminatory and self-imposed".49 Regretting the fact that lack of consensus on the Protocol prevented states parties from reaching a compromise on this issue, Brazil believed the Conference should "urge states parties with expertise and conditions to do so, developed and developing, to help promote economic and social development, and scientific and technological progress, in conformity with Article X" on scientific and technological cooperation.50 India believed transfers should be regulated "on the basis of guidelines to be negotiated and accepted by all states parties".51 It also wanted the guidelines to prohibit transfers to non-state actors. Cuba said that international cooperation for the peaceful use of technologies in the biological and biotechnological fields would function as "an additional restraining factor" against bioterrorism.52 Likewise, Indonesia believed that technical and scientific cooperation was important not only for the socio-economic development of the developing countries, but also in effectively combating the BW threat.53 NGO Statements On November 21, following the conclusion of the general debate, representatives of the civil society addressed the delegations. Eleven NGOs presented a variety of views and issues, all stressing the need for a multilateral legally-binding instrument to strengthen the Convention. The Verification Research, Training and Information Centre (VERTIC) argued the need for a legally-binding verification regime had never been greater: without it, "the norm against biological weapons could be severely damaged", accusations would continue to linger and there would be no opportunity to verify claims independently.54 The Network of Engineers and Scientists for Global Responsibility (INES) and the Institute of Biology (the professional body for biologists in Britain) drew attention to scientific and technological developments posing alarming new challenges to the regime.55 Bradford University and the Stockholm International Peace Research Institute (SIPRI) wanted states parties to reaffirm Article I's basic prohibition.56 The Sunshine Project raised the question of non-lethal weapons, as did the University of Michigan, which it thought threatened to erode Article 1.57 The Women's International League for Peace and Freedom (WILPF) was among several of the NGOs calling for more frequent meetings of the states parties as well as an interim supportive organisation for the Convention.58 Bradford University argued such an interim organisation was required because "the regime to prevent biological weapons is too important to be nurtured and developed at the five year intervals".59 The University of Michigan saw an urgent need for a new international instrument for addressing charges of non-compliance.60 The Quaker United Nations Office in Geneva wanted the Conference to request a renewed and collective effort to universalise the Convention and persuade countries to withdraw the few remaining reservations to the Geneva Protocol, suggesting using systematic demarches - political steps, initiatives and representations - as a pressuring tool.61 Two US-based NGOs, the Federation of American Scientists (FAS) and 20/20 Vision, spoke critically of the American position on the Protocol. 20/20 Vision argued that the perspective of the US delegation was "by no means the view held by all of the US population". The organisation had commissioned a poll demonstrating that the public understood the difference between "strong words and strong actions". Noting "how drastically and suddenly the US position had shifted", 20/20 Vision argued that the volte face ran contrary to the popular desire for "prompt action and a strong verification procedure".62 The FAS caused a stir, particularly in the American delegation, by suggesting that the recent anthrax attacks "derived, almost certainly, from a US defense laboratory" - a hypothesis that has gathered increasing support ever since. The Federation believed the most probable BW threat came from covert state programmes prepared to utilise a terrorist mechanism for delivery. FAS believed that if US officials believed that some countries were operating clandestine programmes, they should also realise that "voluntary measures won't work at the international level, and that a legally-binding mechanism is the only way to influence the behaviour of countries of concern".63 The Hard Work Begins: Following the general debate, the Committee of the Whole, chaired by Ambassador Markku Reimaa of Finland, began its work, conducting an article-by-article review of the Convention's operation for the past five years, as well as dealing with the preambular paragraphs, the purposes of the Convention, and issues identified by the Fourth Review Conference in 1996 with respect to Article XII (the review process). Delegates also considered the politically explosive issue of the work of the Ad Hoc Group. Taken as a whole, the Committee's first week's deliberations appeared to go smoothly, even with regard to discussions on the with AHG. But it was clear that the biggest challenges lay ahead, namely deciding exactly which proposals were acceptable for inclusion in the Conference's Final Document. Ambassador Reimaa released a two-part, 90-page compilation of proposals at the start of the second week (November 26). The pace of work slowed, with delegates ploughing through the large number of suggestions submitted. It was clear, however, that many of the potential sticking points - chief among them export controls, scientific and technological cooperation, and non-compliance - were familiar from either the work of the AHG and/or past Review Conferences. The major fault lines were easy to discern. The Non-Aligned Movement (NAM) wanted the Final Declaration to recognise "the particular importance of strengthening the Convention through multilateral negotiations for a legally binding Protocol", and to note "with regret", using language from the draft procedural report on the AHG's session in July-August, that the Group "was unable to fulfil its mandate" and to "complete its work and submit...a draft legally-binding instrument to the states parties of the Convention". The NAM further wanted the Conference to reaffirm that the Group's 1994 mandate "remains valid and determines any future work" of the AHG, and to stress the importance of restarting and continuing the Group's work "so as to achieve the objectives that were set by the Fourth Review Conference" in 1996. Libya suggested a Special Conference be convened to review the AHG's work and renew its mandate "until its work has been completed". Iran wanted the Conference to reaffirm "the multilateral negotiation on a legally binding instrument", and set the objective of adopting such an instrument at "a Special Conference prior to the Sixth Review Conference". Like the NAM, the European Union wanted the Conference to note "with regret" the Group's inability to complete its work. However, the Union did not call for the work's completion or the reconvening of the Group, wanting instead the Conference to recall the composite text and note that it was "unable to command consensus as a basis for a legally binding instrument to strengthen the Convention". For its part, the United States did not mention the Protocol or the AHG in any of its original proposals to the Committee. As expected from the general debate, the question of follow-up to the Conference received much attention. The initial proposals were rather vague, with countries wary of putting their names to specific mechanisms or discussing various options in detail. For instance, the EU originally omitted the topic for tactical reasons, tabling its proposal later in the Conference, hoping to present it as a 'middle way'. Discussions quickly focussed on the possibility of annual meetings and preparatory committee meetings for the Sixth Review Conference. Australia, Canada and New Zealand wanted the Conference to "agree to more frequent meetings of states parties to take action on the implementation of the Convention and Review Conference commitment, to reinforce compliance and to strengthen accountability". Japan supported "the idea of a strong follow-up mechanism by convening intersessional meetings of states parties to discuss measures to strengthen the BWC including new proposals put forward during this Conference". The United States submitted a modest proposal under Article XII, suggesting that states parties decide to "meet between the Fifth Review Conference and the Sixth Review Conference" to "consider and assess progress" in implementing "the new measures" adopted at the Fifth Review Conference (presumably meaning its own proposals for additional measures not requiring a Protocol), as well as to consider any additional steps or mechanisms. Although not clear from the text of its proposal, the US apparently only envisaged one meeting. On non-compliance, the United States sought to have the Conference call upon "non-compliant BWC states parties to terminate their offensive biological weapons programmes and comply fully with their obligations". Signatories pursuing such programmes were also called upon to terminate their activities. The proposal was met with resistance, not only by the countries accused so bluntly of cheating. Other states feared the suggestion could undermine the BWC by acknowledging the operation of clandestine BW programmes, especially if no action in response was taken within the framework of the Convention. The US further wanted the Conference, under Article V (consultation and cooperation in solving any problems that arise in relation to the objectives of the Convention), to agree that "any non-compliance with [the Convention's] provisions could undermine confidence in the Convention". Washington also advocated a politically binding agreement establishing "a procedure for international investigations of suspicious disease outbreaks and/or alleged biological incidents", wanting the Conference to endorse its proposed procedure for this, under which countries could request an investigation to "be conducted by an international team" and commissioned by the UN Secretary-General. The EU was also of the view that the Conference should stress "the need for all states parties to deal effectively and promptly with compliance issues", but, unlike the US, wanted to extend investigations to facilities. The Union proposed, under Article VI (complaints of breaches of obligations), that an "international body to investigate suspicious outbreaks of diseases, alleged use and suspicious facilities" be established. Both the US and EU wanted the Conference to recall UN Security Council resolution 620 (1988), encouraging the Secretary-General to carry out inspections in cases of alleged non-compliance with the Geneva Protocol. Iran, on the other hand, was satisfied with the framework Article V of the BWC offers in resolving any problems, and wanted the Conference to ask states parties "to refrain from unilateral and discriminatory action in resolving any concerns with regard to the implementation of the Convention". In obvious reference to the US general statement, Iran urged that countries "refrain from baseless allegation and accusation against each other", insisting that any complaint "include factual and concrete evidences and documents confirming its validity". Libya, another accused state party, strongly supported the Iranian position. As expected, Articles III (non-transfer of agents, toxins, weapons or delivery vehicles) and X inspired a large number of divergent proposals. For example, the United States was keen to have the Conference "realise" that while Article X was "not meant to impose restrictions and/or limitations on exchanges", the Conference was also "assured that this article does not impose any obligation mandating transfers" between states parties. China, conversely, wanted the Conference to note "with concern the erroneous practices or negative tendencies" in the implementation of Article III, and express "the view that such practices or tendencies hinder or harm the normal international exchange and cooperation for peaceful purposes". Together with Cuba, India, Indonesia, Iran, Libya and Pakistan, China wanted the Conference to stress that states parties have " a legal obligation to refrain from imposing restrictions or limitations for transfers that would hamper economic or technological development", and state that "national export regulatory mechanisms should only be undertaken by harmonizing both the promotional and regulatory aspects. States parties, "particularly those most advanced in this field", should be urged to "adopt positive steps aimed at promoting international cooperation and transfer of technology, on an equal and non-discriminatory basis", particularly to countries less advanced in this field". This group of NAM countries also wanted a call for the establishment of a Cooperation Committee "tasked with monitoring effective implementation of Article X". The proposal was later endorsed by the NAM as whole. Together with China and Sri Lanka, the group proposed under Article III that countries who are denied transfers for peaceful purposes have "the right to seek redress the situation and settlement of disputes through an institutionalised measure", suggesting that the Conference consider measures proposed by these countries during the deliberations of the AHG.64 Between these two extremes lay a range of proposals by the European Union, the NAM and some individual countries.65 The EU was open to the exploration of "a possible set of common principles in the field of export controls to be applied on a voluntary basis". Brazil hoped to have the Conference recognise that the bio-terrorism threat has made the adoption of effective controls of transfers of agents and equipments "especially" to non-state parties, individuals and sub-national groups "all the more imperative". However, "to assure the effectiveness" of those controls, Brazil sought to have the Conference consider that "the implementation of Article III should be regulated multilaterally, in the framework of the Convention, and be based on a negotiated list". As a whole, the NAM wanted the Conference to endorse the draft Protocol's provisions on scientific and technological cooperation "as the basis for strengthening Article X in the future", borrowing extensive parts of language directly from the composite text. Agreeing language on CBMs proved difficult. The EU proposed that the Conference call upon states parties to consider making it mandatory to provide information on penal legislation (CBM E) and animal vaccines, microbiologically based pesticides and biocontrol agents (CBM G). However, some NAM countries believed CBMs should by their nature be voluntary. These states argued they would accept legally binding measures only in the wider context of an all-encompassing multilaterally agreed Protocol. South Africa wanted the Conference to decide to adopt an additional CBM - declaration of plant inoculant and biocontrol agent production facilities - "to further increase the transparency of biological research and development related to the Convention and to broaden the scientific and technological knowledge as agreed in Article X". The Committee of the Whole completed its first read-through of the proposals towards the end of the second week. Ambassador Reimaa submitted his report on November 30, saying work had been conducted in "a constructive spirit".66 Attached to the report was a new version of the compilation, listing all proposals and identifying the potential for common ground. With the task of the Committee of the Whole completed, the Drafting Committee, chaired by Pakistan's Ambassador Munir Akram, took on the challenge of hammering out the considerable remaining differences. Final Declaration Begins to Take Shape Developments picked up speed during the third and final week, with work underway in different settings: the Drafting Committee, plus the formal and informal consultations of eleven appointed Facilitators. The President of the Conference, Ambassador Tibor Töth of Hungary, the Chair of the AHG, had asked the Facilitators to produce "readily usable formulations" on the following key issues: the Solemn Declaration; BW use; criminalisation of activities contrary to the Convention; biosafety; investigations; assistance; disease surveillance; CBMs; cooperation and transfers (export controls); the future of the AHG; and follow-up to the Conference. The Facilitators reported back to the Drafting Committee on December 4 on the results of their work. Their briefings revealed that while progress had been achieved on the questions of assistance, disease surveillance, CBMs, safety and the Solemn Declaration, more effort was needed on remaining matters, particularly export controls, investigations and the issue of the AHG/follow-up, being handled by Ambassador Töth himself.67 Progress and Problems Iran's Ambassador, Ali Ahsgar Soltanieh, told the Committee consensus had been found on the question of disease surveillance. The Final Declaration would urge states parties to take measures for the fullest possible exchange of equipment, materials, scientific and technological information and to promote technology transfers, particularly to developing countries, for the purpose of disease surveillance and control. Ambassador Soltanieh's text listed eleven different measures, including exchange of information on research programmes, exchanges of scientists and experts and increased technical cooperation and assistance. The list also included a mechanism for coordinating the work of the World Health Organisation (WHO), the Food and Agriculture Organisation (FAO) and the World Organisation for Animal Health (OIE, Office International des Epizooties) with regard to epidemiological surveillance and disease prevention. Ambassador Hubert de la Fortelle of France announced he had reached broad agreement on a compromise proposal on CBMs. His text noted that participation in the CBMs has been neither satisfactory nor universal and that not all responses had been prompt or complete. Thus, the Final Declaration would include a call for full and timely declarations and note the value of nil returns. It would also note proposals to expand the scope of the CBMs, both by improving existing measures and creating new ones. The scope of CBMs A (declaration of all high containment facilities and national biological defence research and development programmes), B (declaration of unusual outbreaks of disease), E (declaration of legislation related to the BWC) and G (declaration of human vaccine production facilities), could be expanded, CBM C (encouragement of publication of results) could be improved and a new CBM, a declaration on production facilities for biocontrol and plant inoculants, could be added - but only at the next meeting of the states parties. Ambassador Chris Westdal of Canada said he was close to agreement on assistance, although some delegations still harboured reservations. Canada envisaged the Final Declaration stressing the importance of Article VII on assistance and affirming that requests for assistance would be considered promptly, with emergency assistance provided in a timely fashion. It is understood that the issue of access to medicines during outbreaks of disease was more difficult to resolve. The United States reportedly opposed making such access an obligation in case, in the event of a global outbreak, it prevented it from according priority to its own population. Britain's Ambassador, David Broucher, the Facilitator on the Solemn Declaration, reported important but not complete progress. The Declaration's first two paragraphs, setting out the states parties' determination to accomplish the total elimination of all weapons of mass destruction (WMD) and to achieve general and complete disarmament under strict and effective international control, were understood to have caused difficulties. The United States found it difficult to agree to the reference on the total elimination of all WMD - language used in the composite text of the AHG negotiations. However, pleas by other delegations, as well as Broucher's own efforts, changed the delegation's mind. In addition, the US had difficulties with a paragraph recognising the importance of strengthening the Convention, including through binding measures, because of its obvious link to the AHG and the Protocol. Chile's Alfredo Labbé tackled the timely topic of BW use. As in 1996, the Conference would reaffirm that the use of biological agents and toxins other than for peaceful purposes, "in any way and under any circumstances", is effectively in violation of Article I of the Convention. However, new proposals, by Brazil among others, to have this non-use norm apply also to weapons, equipment or means of delivery within the states parties' own territory, were under dispute, as was a reference emphasising that that the use of zoological vectors is inconsistent with Article I. Mexico's Ambassador, Gustavo Albin, was still trying to hammer out differences on national legislation measures to ensure that Article I applies anywhere in the states parties' respective territories, or under their jurisdiction or control, so as to prevent the use of biological agents and toxins for purposes contrary to the Convention. There were a large number of proposals for dealing with this issue in the Final Declaration, particularly from western countries including the EU, Canada, Switzerland and the United States. Under Albin's draft, states parties were expected to note measures, such as the adoption of penal legislation, that countries had already taken, and to encourage those who have not yet done so to follow suit "immediately". There was also a paragraph on terrorism, encouraging countries to take measures to ensure that suspected or known terrorist organisations or groups would be prohibited and prevented from acquiring agents and toxins, and to explore possible guidelines for national penal legislation. The Conference was expected to stress the importance of measures on physical protection, education on the provisions of the BWC and the Geneva Protocol, and codes of conduct for the scientific community. Recommended national legislation measures would include the requirement to report the possession of dangerous agents, enforcement of regulatory measures on transfers and physical protection, legal assistance in criminal investigations related to BW, and enhancement of capabilities to prosecute and extradite individuals involved with BW offences. The Conference would also call on states parties to negotiate regional or international legal agreements to prevent, criminalise and eliminate terrorist crimes. However, agreement remained elusive on other issues, specifically on references to extradition and terrorism, and generally on the question of how specific the Final Declaration should be on penal legislation - an issue which many countries considered to have implications for their sovereignty. Volker Beck of Germany reported that delegates were close to agreement on the Conference's recommendations and decisions on safety under Articles II, III, IV and X. In a compromise proposal, Germany foresaw the Conference stressing the importance of taking all necessary safety precautions to protect populations and the environment, noting with interest the provisions of the Cartagena Biosafety Protocol and calling on states parties to adopt national regulations on the protection, handling and transfer of dangerous agents and toxins. Those states parties which had not yet adopted national guidelines for genetic engineering would be encouraged to do so. The United States reportedly still had reservations on language underlining the importance of the Rio Declaration and Agenda 21, adopted at the UN Conference on Environment and Development, and the Convention on Biological Diversity, as well as a reference welcoming the Biosafety Protocol to that Convention. India's Ambassador, Rakesh Sood, facilitating the discussions on investigations, told the Committee on Tuesday that more time was needed to reach agreement, due to persistent divergence of views. While the EU argued the case for a new compliance mechanism to investigate suspicious incidents and facilities, the US lobbied for investigatory powers to be granted to the Security Council - where it has veto power and could thus block as well as request investigations. Many NAM states, notably Iran, advocated a third approach, based on the elaboration of a comprehensive, legally-binding instrument. Likewise, Brazil needed more time to conclude its consultations oncooperation issues. Frederico Duqueu Estrada Meyer produced a preliminary paper on Wednesday, December 5, based largely on old language from the 1996 Declaration and new proposals from Australia, Italy, France, the EU and the NAM. At the behest of the NAM, the paper incorporated large sections of text from the AHG composite text. Brazil proposed a compromise on the vexed issue of a Cooperation Committee, which the NAM wanted but western delegations disliked. Instead of a full Committee, Brazil suggested a forum for consultation on Article X issues, designed to create opportunities for cooperation on matters related to the promotion of scientific and technological exchange. The US wanted to recognise the danger of cooperating with terrorist organisations but some NAM countries felt that Article X was not the appropriate place for references to terrorism. The problematic issue of biological agent and toxins and equipment transfer was handled by Ambassador Akram, who circulated an informal seven-paragraph paper drawing on proposals from the EU, South Africa and the United States. On the basis of this paper, the Conference was expected to recognise the continuing importance of Article III, noting the concrete measures countries have taken to give effect to their undertakings, and stressing that transfers should be authorised only for purposes not prohibited by the Convention. As in 1996, it adds, however, that the provisions of Article III should not be used to impose restrictions on legitimate transfers. To reflect current concerns, countries were to be urged to take measures to prevent and respond to any violations by individuals or sub-national groups of their export control regulations, including making such attempted or actual transgressions a crime. Any recipients, "including terrorists or terrorist groups, must be prevented from acquiring, through transfers", any agents, toxins, weapons, equipment, delivery means and information related to the development of biological weapons. Discussions on this paragraph were complicated. However, the most problematic text concerned export controls. Drawing from various proposals by Brazil, the EU and a group of 'hardline' NAM countries, Ambassador Akram's proposal encouraged states parties to consider ways to enhance the implementation of Article III, "including elaboration of a set of common principles encompassing, inter alia, resolution of differences between states parties in the field of export controls". Western Group countries belonging to the Australia Group had great difficulties with this formulation. The United States, for instance, proposed the deletion of the EU's proposal for a set of common principles on export controls, to be applied on a voluntary basis, presuming out of concern it would dilute existing restrictions. The intertwined issues which many delegations regarded as 'make-or-break' - the future of the AHG and the follow-up to the Review Conference - were handled by the Conference President and AHG Chair, Ambassador Töth, who introduced his first compromise proposal on the evening of December 4. Töth's proposal resembled a proposal by the EU, tabled the night before. Under Article XII, the EU proposed that, beginning in 2002, states parties meet annually "to explore further means and mechanisms to strengthen the Convention" prior to the next Review Conference. The EU also proposed that states parties decide at their first annual meeting to establish "open-ended governmental expert groups to examine and elaborate on further means and mechanism to strengthen the Convention based on, inter alia, decisions agreed at the Fifth Review Conference, as stated in Article I, III, IV, V, VI, VII and X, and additional measures if states parties so decide". The EU further proposed that the Final Declaration urge the President of the Review Conference, "in due time before the annual meeting of states parties in 2002 and in informal open-ended meetings, to facilitate the implementation of, inter alia, decisions agreed on at the Review Conference...and to explore additional measures to further strengthen the Convention". The proposal was generally well received, with many, including 'moderate' NAM states, regarding it as an honest attempt to find common ground and give a short-term boost to the Convention. Some countries, however, including China, Cuba and Libya, reportedly complained that the proposal made no mention of the AHG. The United States, which had tabled its own proposal under Article XII (see above), was reserved in expressing its stance on the European suggestions; it was, however, clearly 'on guard', resisting the establishment of expert groups for fear they might open an avenue for reopening Protocol negotiations. Töth's draft envisaged annual meetings of states parties between the Fifth and the Sixth Review Conferences to assess progress made in implementing measures adopted at the Conference and to multilaterally study, elaborate and negotiate further measures to strengthen the Convention through a legally binding document. At these annual meetings, states parties could decide to set up subsidiary bodies for this purpose or to convene further meetings. The annual meetings would be prepared by an open-ended General Committee; before they took place, the President and states parties would hold informal open-ended meetings to facilitate the implementation of the Conference's decisions and to look into possible additional measures. Beginning of the Endgame With many outstanding issues remaining, the Facilitators were given more time, until midday on Wednesday December 5, to wrap up their consultations, allowing Ambassador Akram to bring out the first comprehensive draft of the Final Declaration. The extension duly enabled the resolution of some of the more minor disagreements, and Akram was able to introduce his draft at noon on the penultimate day, December 6. This meant, however, that full agreement had been reached on only five of the Convention's fifteen Articles (II, VIII, XIII, XIV and XV), plus the Preamble. Five major areas of dispute remained: non-compliance, investigations, export controls, the AHG, and follow-up. Ambassador Töth continued with intense behind-the-scenes discussions to find acceptable formulations on the AHG and follow-up. Some key players' lunchtime deliberations on the penultimate day were reportedly dedicated to the question of the AHG, its past and future, leading to a new proposal circulated to others that afternoon. The proposal reportedly "regretted" the fact that strengthening of the Convention, as called for by previous Conferences, had not been achieved, and reiterated that this goal remained "valid". It is understood the proposal was initiated by one key state, China, and was considered likely to attract wide NAM approval. Its moderate tone also potentially paved the way for western countries' support. Töth indicated he would seek views on the new language. The return of Undersecretary Bolton on December 4 also signalled increased attention to non-compliance during the final days and hours of the Conference. His 'warming up' of the international press, explaining why the United States considered compliance the priority issue, suggested the US was preparing the ground for the endgame. The US delegation had tabled demanding language on this question, wanting the Conference to ask non-compliant states to stop their BW programmes. Ambassador Akram's compromise draft language proposed that states parties stress the "vital importance" of implementation of all BWC provisions, and call upon all states parties and signatories to "comply fully" with their obligations "on the basis that any non-compliance with its provisions could undermine confidence in, and achieving the basic provisions of, the Convention". On a related topic, investigations, the news was also troubling, with discussions on December 6 revealing no significant bridging of the wide differences of approach to the issue, outlined above, held by the EU, US and NAM. The issue of the transfer of biological agents, toxins and equipment also remained unresolved, principally due to the deep exception taken by many developing countries to existing export control arrangements. The question of transfers in reference to scientific and technological cooperation was equally mired, with Brazil's energetic attempts to chart a middle course seemingly coming to naught. Delegates continued discussing all these vexed questions through the afternoon of the penultimate day. A night session was then convened, running till midnight, after which the daunting list of items requiring resolution on the final day read as follows: the 'big three' issues - compliance, the AHG and follow-up; and six other issues - references to the recent anthrax letters, transfers and export controls, guidelines on penal legislation, BW use, the NAM proposal for a Cooperation Committee, and the EU proposal for setting up an investigation mechanism. Anger after the Ambush: The final day started discouragingly. Some delegates claimed progress was being slowed by the United States, which they characterised as being 'difficult' on some of the more minor issues, reopening issues thought to have been resolved. There were further complaints that the United States was unresponsive to requests of clarification and explanation. Informal consultations continued on the 'big three' issues. On non-compliance, some negotiating room seemed to be opening. The United States introduced an encouraging counter-proposal to Akram's compromise draft. Softening their demands, the Americans sought to have the states parties express "grave concern that compliance with Articles I, II, and III has been subject to doubt in certain cases". The issue of non-compliance was discussed throughout Friday and it is understood that some encouraging progress was made. However, the whole, seemingly 'make or break' issue of compliance suddenly became irrelevant, with less than two hours scheduled time left for the Conference, when the American delegation tabled drastic new language on the AHG and follow-up. Apparently conceding fresh ground, the proposal suggested that the Conference decide to hold annual meetings, starting in November 2002, to "consider and assess progress by states parties in implementing the new measures adopted at the Fifth Review Conference" and to "consider new measures or mechanisms for effectively strengthening the BWC". These annual meetings, moreover, could be allowed to establish expert groups, although such groups would not be allowed to "negotiate measures". But in exchange for this follow-up mechanism, the United States demanded the termination of the AHG's mandate. The 'offer' sent shockwaves through the meeting room and led to many angry responses. Countries from all regional groups expressed dismay and disappointment over the US attempt to bury the AHG, and for jeopardizing the Conference by introducing an obviously controversial proposal at such a late stage. The Drafting Committee's meeting was suspended to allow the regional groups to meet. EU delegates were reportedly so upset they boycotted the Western Group meeting and held an EU meeting instead. It is understood the US delegation was confronted by its closest allies, enraged at having been left in ignorance of the dramatic manoeuvre. These and other heated corridor discussions revealed a general sense of the US action as a deliberate last-minute attempt to derail the Conference. The US delegation, however, considered the strong reaction, particularly by its allies, to be unwarranted. Washington stoutly defended its stance to the media, saying its position on the Protocol and the AHG had been known for months, so others should have not been surprised by its request to terminate the Group's mandate. This was, however, a simplification of the issue. Everyone at the Conference, including the US delegation, understood that the issue of the AHG was, as one diplomat put it, a "Sleeping Beauty": positions on the future of the Group were so diametrically opposed that it was better to let the question lie dormant than allow the reawakened controversy to wreck everything. Although the strong reactions by some of the NAM countries were predictable, the US delegation perhaps miscalculated the response of its friends and allies, expecting similar 'loyalty' from them as it got in July/August when the Group got divided while attempting to draft its procedural report after the United States had rejected the Protocol. It is more likely, however, that the last-minute manoeuvre had less to do with transatlantic relations than internal bargaining in Washington. On the penultimate and the last day, rumours abounded of tension within the US delegation, with State Department and Pentagon strategy and tactics at loggerheads. One theory is that it was the Pentagon which insisted that the follow-up mechanism only be offered in return for the unacceptable: the scrapping of the AHG and the irretrievable collapse of the Protocol negotiations. Following the regional group meetings and a short meeting of the General Committee, a consensus decision was reached to adjourn the Conference until November 11, 2002. The Conference then finally adopted an interim procedural report in a short plenary meeting, thereby putting an end to proceedings. The suspension was generally accepted as a wise decision in an emergency situation, given that the Conference would have almost certainly failed in the embittered atmosphere generated by the US move. All three leading diplomats of the Conference - Ambassadors Akram, Reimaa and Töth - stressed that, despite the failure to bring the Conference to a successful conclusion, delegations had come near to agreement on a number of important issues. According to Töth, the draft Final Declaration was "95% ready" and could, pending the conclusion of the Conference next year, act as an "orientation" for states parties in taking steps to reduce the BW threat.68 Conclusion States parties came to the Review Conference with a large number of issues to be discussed and questions to be answered, including the use of biological agents as a weapon of terror and the derailed attempts to strengthen the Convention through a verification mechanism and how they can best respond to the recent challenges posed by the scientific and technological advances in biotechnology. Although the three weeks of deliberations provided a preliminary sense of what states parties consider the way ahead in tackling these vast problems, we will now have to wait for another year until any substantive action can be taken. In the meantime, the biggest question - what to do with the Protocol and the AHG - lingers on, trapped between different positions not only on the Protocol itself, but also on multilateral arms control and collective security more generally. And while the debate has dragged on without resolution or progress, the world has witnessed the terror - so far on a small scale - which biological weapons can bring about. When states parties reconvene, much hard work will already need to have been done to make up for the time and focus lost in the double-blow of the collapse of the AHG talks and the suspension of the Review Conference. The task at hand is now nothing less than saving the Convention. States parties must put aside their differences and take action if they are to are to truly demonstrate their collective commitment to banning biological weapons and preventing untold suffering. Notes and References
Jenni Rissanen is the Acronym Institute's Analyst in Geneva. See also: Appendix: The Draft Final Declaration © 2002 The Acronym Institute. |