Biological Weapons Convention (BWC)

BWC Protocol Bulletin, August 7, 2001

By Jenni Rissanen

BWC AHG Struggles For A Way Forward - Difficult Report Writing Ahead

The participants of the Ad Hoc Group (AHG) of states parties to the Biological and Toxin Weapons Convention (BWC) are searching for a way through the crisis caused by the United States' rejection of both the Chair's composite text and further efforts to negotiate a Protocol to the Treaty. The US announcement was made at the start of the Group's 24th and final session (July 25-August 17) before the Fifth BWC Review Conference later this year. 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. Instead, they agreed to start drafting the AHG's report. This is proving a difficult exercise, with delegations differing widely on how to present the Group's failure to conclude negotiations. All participants attach great importance to the report, regarding its formulations as fundamental in attempting to preserve the progress and achievements of more than six years of talks, as well as in helping to point the way forward.

The Chair of the AHG, Ambassador Tibor Tóth of Hungary, convened a plenary meeting on Friday August 3, following informal consultations with some thirty delegations throughout the second week. Delegations had also been meeting both bilaterally and in groups to discuss next steps. Tóth said he had focused on three questions in his consultations: First, whether there is willingness in the AHG to continue with the finalization of the Protocol. Second, if not, what should be the next course of action? Thirdly, he had discussed the report of the AHG. Tóth had found that the "overwhelming majority" had reaffirmed their support for the composite text as a basis for finalizing the Protocol and "continued efforts in the right direction". However, delegations had expressed concern over the fact that this was no longer possible. There was "readiness to negotiate" if the necessary conditions - US participation - were there. If not, however, 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: there was a desire to preserve what had been achieved so far and 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.

Following Tóth's briefing, a number of delegations spoke in favour of continuing work. The EU had spoken already earlier in favour of "the maintenance of a multilateral forum of negotiation in the framework of" the Convention in its July 26 statement. One member state, France, argued now further that a swift end to the AHG's 24th session "which in fact ended on 25 July" did "not put an end to the work" of the AHG. It 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. Another EU member country, Germany, said the AHG could "not declare failure" and called for the continuation of the AHG process on the basis of the current mandate. It said the procedural decisions to be taken needed to be "forward-looking" and sufficient to "help us to continue the multilateral effort to strengthen the Convention". Australia spoke also about "preserving options for continuing efforts to strengthen the BWC". Russia said it supported "the idea that the process of strengthening the Convention must continue" and "the view that the mandate...should not be changed and that the work should be continued". Exactly how, however, needed further reflection. Mexico thought that the AHG should "explore every possibility for reaching agreement" to fulfil the Group's mandate. India said that the AHG was "sadly closing a chapter" but "perhaps not the entire book". 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, on the basis of the mandate decided upon" in 1996 in its report. Iran, however, seemed sceptical: in an attempt to fix the spotlight on the United States, it repeatedly questioned whether everyone in the AHG still supported the mandate? Iran concluded, in the absence of any challenge to its question, that the mandate still commanded full support. Iran wanted this assertion reflected in the AHG's report.

In summary, although there seems to be a general willingness to preserve what has been achieved so far and to continue work to fulfil the mandate, potentially damaging differences exist on the options available. As France put it on Friday, the 24th session went into a "de facto suspension" with the US announcement. In the absence of talks, the report of the AHG has become the focus of attention.

In Tóth's assessment, the report - the third topic dealt with in his consultations during the second week - would need to address major developments in the AHG, such as the "origin and evolution" of both the rolling and composite texts, and describe recent developments as well as the current situation. All delegations were hoping for a "simple and factual" report - but Tóth said he realised these words had different meanings to different delegations.

The Chair identified two open questions: what was the right timing for drafting the report, and should the Group address it to the Review Conference or a special conference? Tóth reported that while some delegations wanted to start writing immediately, others had requested for more time to consult their capitals. As for the 'addressee' of the report - which turned into a major bone of contention for some delegations during the second week - Tóth advocated leaving the question aside for the time being. The debate that followed Tóth's briefing confirmed the contentious nature of the drafting process, underscoring the difficulty of agreeing on the 'addressee' and 'simply' and 'factually' reflecting recent developments, and particularly the US rejection.

The divisiveness over the 'addressee' question relates to wider disagreement over whether or not to convene a special conference. On August 3, a group of like-minded countries (Brazil, Chile, Ireland, the Netherlands, New Zealand, Norway, Peru and South Africa) argued strongly in favour of holding such a conference. Citing previous consensus decisions by states parties which they said had been "clear on this point", the group felt the AHG should report to a special conference. In their view, a special conference would be "the venue where we are most likely to have a focused and substantive consideration" of the AHG's work. The group suggested the week before the Fifth Review Conference as possible date for the conference.

Germany held a different view, arguing 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? Might there not be a risk that such a conference could "put into question" the continuation of the AHG's work? Germany wanted to start drafting the report immediately, and wanted it to inform the states parties through an "appropriate forum" - the Review Conference - that the AHG was not able to conclude its work.

Australia associated itself with Germany's statement. Japan also 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. Switzerland stressed that the main thing was to refrain from doing anything that could jeopardise the work so far and prevent its continuation. The AHG's task was to write a brief and factual report and then "let the Review Conference decide" how to proceed. Although France did not express its view explicitly on this point, it too is believed to agree. Cuba, Iran and Libya also felt that the report should go to the Review Conference.

A number of delegations did not seem to have a clear or strong opinion. India stressed that there was "only one report to write" - to the states parties of the BWC - be it to a special conference or the Review Conference. Canada needed to reflect on the issue but stressed that its objective was to preserve what has become known as the acquis - what has been achieved so far: the group, its mandate and the whole process. Britain disagreed that the report should include a recommendation on the venue for presenting the report. Instead, the focus should be on the question of which venue could best "preserve the text". Britain had not yet decided but was "leaning in favour of the option that poses the least risk".

Pakistan was uneasy with the Chair's suggestion to leave the issue of the addressee aside, arguing that it was "fundamental" to clarify the question before embarking on the report. South Africa, however, was frustrated by 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, it was struggling over the issue of the addressee, a procedural question that was not to be answered "emotionally". It called on the AHG to not let the issue divide it, but work instead on the basis of what unites the Group.

Beyond the procedural talk surrounding the question of the report's addressee, the real issue here is the future of the Protocol process and how to keep it alive. The debate, although currently taking place in the context of the report discussions, serves as a 'pre-debate' about the advantages and disadvantages of the different options that will have a bearing on the future of the whole process. Overall, the goal seems to be the same for many delegations - to preserve the AHG's work and have the process continued - but they differ their approaches.

For example, some strong supporters of the Protocol argue in favour of holding a special conference, as demonstrated by the statement of the like-minded group. One advantage of such an approach would be a greater focus on the Protocol than that attainable at the Review Conference, which will obviously need to deal with a range of issues. Thus, some feel that there is a better chance for a successful outcome than in the Review Conference that might fail due to other difficult issues. If the Review Conference failed, this could then put in question the continuation of the work on the Protocol. Alternatively, but to a much lesser extent, there is a concern that the Protocol issue might, given the failure of the AHG to conclude negotiations, prevent adoption of a final document, 'making a mess' of the Review Conference and compromising the other issues on its agenda. Others, such as France, Germany and Japan, are understood not to want to hold a special conference for fear either that it would signal that the Protocol process had come to an end, or that it could be used as a platform to kill the process. In addition, some point to fears that some countries might use a special conference as a launching pad for initiating an Ottawa type process, trying to push the Protocol through in the hopes of trying to get the reluctant countries onboard perhaps at a later stage. The United States, on the other hand, is believed to oppose such a conference for other reasons: a special conference would highlight its rejection. 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 be highly likely reluctant to do.

Some countries, such as France and Japan, expressed a desire to speed up the process of writing the report. France hoped for a swift start, saying there was no "point of hesitating further", and inviting the Chair to issue the first draft. Japan agreed, worried that time might run out.

Friday's debate anticipated and rehearsed many of the difficulties likely to trouble the drafting process. India noted that it was "quite clear" different delegations had "different connotation of certain unhappy facts". Thus, making the report factual was "not going to be as easy a task as the word would indicate". India was proven right a few minutes later when Iran circulated a proposal for a text that summarised the recent developments. Not surprisingly, Iran suggested a formulation that singled out the US rejection as the reason for not concluding the negotiations. Iran will not be the only country to want to place sole or overwhelming blame on the United States. A number of delegations have indicated that they want to reflect the developments 'accurately' one way or the other. Russia, for example, said on Friday that a "well-known statement...by one delegation" had made it "practically impossible" to do substantive work on the Protocol, and hoped that this state of affairs "be reflected in our factual report". Cuba and Libya made similar references to the situation. Libya argued that the report should "state the reasons why we are unable to achieve an agreed formula for the work" and demanded that "a spade be called a spade".

As for the annexes of the report, the prevailing view seems to that both the composite text and the rolling text should be attached. A number of countries, including Cuba, India, Japan and Libya, have said they support this option. India - which was one of the countries most keen to retain the rolling text as the basis of the negotiations - suggested that the composite text, which was tabled as a conference room paper (CRP.8), be upgraded to an official AHG document.

In response to this and the calls to get the work on the report underway swiftly, the Chair issued a first draft of the report on Monday, August 6. The AHG will address the more controversial issues in the report, including the addressee, in informal meetings. With above-mentioned difficulties, it is expected that the drafting will go well into the fourth and final week of the AHG's 24th session.