Biological Weapons Convention (BWC)

BWC Review Conference Bulletin, November 26, 2001

Calm After the Storm: General Debate Concludes as The Hard Work Begins

By Jenni Rissanen

The first week of the Fifth Review Conference of the Biological Weapons Convention (BWC) concluded on Friday, November 23. With the exception of the opening day turmoil caused by the "straight-talk" statement of the United States (see BWC Rev.Con. Bulletin, November 19, 2001), deliberations unfolded in a calm atmosphere. The general debate concluded on Tuesday, November 20, and the Committee of the Whole, chaired by Ambassador Markku Reimaa of Finland, began its work the next day, 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). These deliberations were, by all accounts, conducted smoothly and without any major tension. Delegates also considered the politically explosive issue of the work of the Ad Hoc Group (AHG), whose work on drafting a verification Protocol came to a halt in late July when the US announced it would no longer participate in the talks. It appears, however, that at least some of the heat has gone out of this debate, as these discussions were also reported to be relatively restrained. In addition, one major question hanging over the Conference - whether the United States would block the continuation of the work of the AHG - has now been answered, albeit negatively. The US delegation reportedly announced on Thursday afternoon that it would not support the AHG's continuation in any form. In contrast, while general disappointment was expressed at the failed talks, the general view of delegations was that the Group's mandate remained in force and that the strengthening of the Convention needed to take place in a multilateral setting and in a legally binding way. In particular, Non-Aligned Movement (NAM) countries asked for the reconvening of the Group to allow it to complete its task.

Ambassador Reimaa set Friday, November 23, as the deadline for proposals on language for inclusion in the Final Document. Reimaa is expected to bring out a 'compilation' of proposals early in the second week. The Committee of the Whole is due to conclude its work on Wednesday, November 28 and to report back to the plenary the next day. The Conference is scheduled to finish on December 7.

General Statements

The Conference heard almost forty statements, all stressing the need for action to strengthen the ban on biological weapons and - in the light of the events that had unfolded 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. It is clear that arriving at a consensus Final Document will be a big challenge.

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 on November 19. 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, the limited number of states parties submitting information on their activities as a confidence-building measure (CBMs), and expressed 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". Annan urged delegates "to come together, overcome your differences, and take these next crucial steps in history of this landmark Convention".

A two-day general debate then followed. Close to forty statements were heard, from Algeria, Argentina, Australia, Bangladesh, Belarus, Brazil, Britain, Canada, Chile, China, Croatia, Cuba, Czech Republic, Egypt (observer), the European Union (EU), India, Indonesia, Iran, Iraq, Japan, Libya, Malaysia, Mexico, New Zealand, Norway, Pakistan, Poland, Russia, South Africa, South Korea, Switzerland, Thailand, Turkey, Ukraine, the United States, and the International Committee of the Red Cross (ICRC). In addition, the NGOs addressed the delegates on Wednesday (see BWC Rev.Con. Bulletin, November 23, 2001).

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 EU states to Iran, felt these incidents had underscored the need for strengthening the Convention and multilateral disarmament and non-proliferation efforts in general. All countries agreed that the Conference was taking place at a critical juncture, with a widespread feeling expressed that rapid advances in science and technology posed challenges to the BWC regime that needed to be addressed more frequently. The statements addressed a multiplicity of issues, including the Convention universality, compliance with the Convention, scientific and technological cooperation, export controls and the Geneva Protocol. However, the failed negotiations on a verification Protocol quickly emerged as the dominant theme. With the exception of the United States, which reiterated its rejection of the draft Protocol in its general statement, countries generally regretted the AHG's inability to conclude the Protocol, and even to draft its procedural report, in time for the Review Conference. With some exceptions, countries seem to have put bitterness over the US rejection behind them for the sake of the outcome of the Review Conference - at least for now. China called the US position "neither fair nor reasonable". 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 clauses, only to reject it afterward invoking, among other reasons, its weaknesses".

Most states, including many western countries, wanted to continue efforts to strengthen the Convention, but did not indicate when, where or how, or whether this meant they wanted to reconvene the AHG. A number of NAM delegations, on the other hand, were unequivocal in their call for the reconvening of the Group to conclude the Protocol.

China, Cuba, Iran, Indonesia Libya and Pakistan, which six months ago resisted 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' (WP.451, May 4, 2001), appeared to be among those countries most eager to reconvene the 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 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". 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". 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". 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". Indonesia said it was "incumbent" on states parties "to continue negotiations in the [AHG] in order to finally reach the necessary consensus on the protocol". Malaysia agreed, saying it believed the continuation of the AHG's work "remains valid and continues to be the best means to achieve" the objective of strengthening the Convention". The Review Conference would have to decide the next course of action, and was faced with three basic options. The first of these was simply to abandon the enterprise, which was certainly not going to be the choice of the majority. The second alternative was to temporarily suspend negotiations, a course which Malaysia believed would result in the "unravelling of the Protocol text". The final option was to continue the process, using the composite text as the basis of negotiations. India believed it was "doubly important" to acknowledge that the importance of the multilateral negotiating process remained "undiminished", and spoke of 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".

Russia was "deeply concerned" that the Protocol had not been completed "due to events...well known to everybody present here". The Conference had to find a solution. 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. Russia was also ready to consider any additional measures. Multilateral negotiations needed to resume as soon as possible: the AHG should reconvene as early "as the first half of 2002". Ukraine believed the current situation should not result in a suspension of the process. It was surely possible to accommodate both existing suggestions for developing the Protocol and the new US proposals. All proposals, Ukraine suggested, could be compiled "into one unified document for further consideration". 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".

The EU considered it "essential" that the Group's mandate remained "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". These would relate, in particular, to compliance with Article I, non-proliferation and export controls, compliance measures (investigations), technical assistance and international cooperation. One EU country, Britain (one of the Convention's three depositary states, along with the US and Russia) thought states parties 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". If the Convention was being "flouted", that was "surely an argument for redoubling our efforts, not for giving up on the job". Britain suggested a number of measures for the Conference to consider, some of which could be implemented domestically and others multilaterally. These measures, including a revived and expanded mechanism for investigations, additional CBMs, assistance, disease surveillance, and a scientific advisory panel to monitor scientific and technical developments, could be 'wrapped up' into a multilaterally agreed process.

Norway remained convinced that the AHG 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". Noting the new proposals that had been made, Norway said it was important to include measures on terrorism and public health in a future legally binding instrument. New Zealand described the Conference as "a defining moment" for the BWC: calls for strengthening the Convention had to "manifest themselves in action" if the states parties were to "maintain credibility". Although unilateral and plurilateral measures, such as biodefense programmes, were "essential" and "consistent" with the Convention, the proliferation threat also required a collective response and engagement. New Zealand believed it was time to think "outside the box" when came to non-compliance, arguing that the composite text could be revisited to stimulate thinking in this regard. 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. New Zealand also proposed that states parties hold annual meetings. The ICRC wanted the states parties to "resume efforts" in the AHG because leaving the task unfinished would raise "disturbing questions about the international community's willingness to uphold the long-held prohibition of a hideous form of warfare".

Switzerland believed that "when the time comes, we must accomplish the work of the ad hoc group drawing the lessons from the past". The Conference should "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.

Australia remained convinced that a legally binding multilateral instrument such as the protocol would have been "the best way of reinforcing the Convention". With the AHG's failure, however, the Conference had "no option but to be forward-looking". Differences should not prevent states parties from "agreeing to some new, practical measures to strengthen the Convention in the short term". 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 which provides a renewed undertaking for multilateral negotiations" on preventative measures.

Japan regretted the AHG's failure and was ready to continue "all possible efforts towards the goal of strengthening the Convention". It was of the view that "a multilateral legally-binding instrument which involves all states parties...is necessary for international efforts to strengthen the Convention", and therefore supported the "preservation of the multilateral negotiating process to that end". In light of the anthrax incidents, it was also "of utmost importance to consider all relevant measures in a comprehensive manner" to reduce the threat of BW. 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. South Korea argued that the global fight against terrorism had "underscored the renewed importance of a collective and multilateral approach to threats of international peace and security". Thailand believed there was "still an urgent need" to strengthen the Convention "with a legally binding instrument" and hoped the Conference would find a way to "continued our common unfinished work".

The Rio Group (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, the Dominican Republic, Uruguay, Venzuela 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". Brazil urged states parties to do their "utmost" not to "squander" the composite text.

Other issues addressed included the need for more frequent meetings of states parties, the US alternative proposals on how to strengthen the Convention without resuming the search for a Protocol, the universality, non-compliance, CBMs, and scientific and technological cooperation and export controls (Article III and X).

With hopes dim for agreement on the continuation of the AHG, and given ongoing and rapid advances in biotechnology, many countries argued that states parties needed to meet more frequently to respond to new challenges, and to agree a mechanism for following up the Review Conference. There has been talk of annual meetings of states parties, preparatory committee meetings for the next Review Conference, and expert meetings. In the absence of an Organisation for the Prohibition of Biological Weapons (OPBW), calls have also been made for some kind of an interim supporting structure to facilitate and advance the Convention's implementation. Japan thought states parties should meet more often between the Review Conferences, allowing them to co-operate more closely; it thus 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". Norway wanted to strengthen the framework of the Convention through "more regular meetings" and "other types of intersessional work". South Korea thought the idea of establishing "some kind of an intersessional mechanism to strengthen the follow-up process deserved serious consideration". Britain spoke of the accelerating pace in science and technology and 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". It proposed setting up a scientific advisory panel to monitor scientific and technical developments, to meet at least on an annual basis. Australia supported the holding of annual meetings to "ensure that the international community continues to work together" in the fight against biological weapons. Canada wanted open-ended intersessional institutions to oversee implementation work. The 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 having more regular meetings between the Fifth and Sixth Review Conferences.

Pakistan was one of the few countries to explicitly comment on the suggestions put forward by the United States. It said the US had put forth some "interesting proposals" on technical and scientific cooperation, which it was considering with "an open mind". However, 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 generally felt that the BW threat required both national and international responses.

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 and further delay. Canada agreed, saying the Conference should help to persuade those outside to join. Iran urged all biotechnologically "advanced and capable" non-states parties to accede and reminded delegates of its "bitter experience" with the Chemical Weapons convention (CWC), which Iran had ratified with an expectation that everyone would do the same, particularly in the Middle East. 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 this was partly due to financial considerations, Pakistan urged the Conference to look into the matter.

In addition to the United States, which raised the question of non-compliance on Monday, other countries expressed concern 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. Australia was concerned about reports suggesting some states parties had undertaken BW research, development, production or stockpiling in the past five years. Britain said there were "still unfortunately questions over whether some states parties fully meet all their obligations".

Iran again expressed concern over the fact that the BWC does 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 1, or require those countries who still maintain reservations to the Geneva Protocol to withdraw them. Iran and others, including the EU and the ICRC, called on 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.

With respect to CBMs, the EU proposed that "some" of the politically binding CBMs be made legally-binding, but did not specify which. Canada regretted that participation in the CBMs had been "disappointing", saying this highlighted "the shortcomings of a voluntary approach": states parties needed "to get some law on our side". South Africa proposed that states parties declare facilities working with animal and plant pathogens in the CBMs. Britain suggested additional CBMs, as well as making some of them mandatory.

The developing countries in particular highlighted the importance of scientific and technical cooperation. The related question of technology transfers was also high on the developing countries' agenda. 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". This only created distrust and raised questions about "the very rationale of negotiating and concluding international legally binding instruments" such as the Protocol. Iran thought the preservation of national export controls and "arbitrary" parallel regimes after the entry into force of a Protocol would render "serious damage" to the universality of the Convention. Iran called the Australia Group restrictions "unilateral, discriminatory and self-imposed". Brazil had reservations about current informal plurilateral export control arrangements, fearing they might hinder the fullest possible exchange of equipment and scientific and technological information, in violation of Article X. Brazil regretted the fact that lack of consensus on the Protocol prevented states parties from reaching a compromise on this controversial issue and 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 of Article X." Canada said there was a need to strike "the right balance between Article X obligations to facilitate exchanges and Article III's obligation not to transfer", but thought that "strong national export controls and effective multilateral coordination" were essential. India believed transfers should be regulated "on the basis of guidelines to be negotiated and accepted by all states parties". 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 be "an additional restraining factor" against bioterrorism. 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. South Africa said it would explore how the Conference's outcome might include reference to the kind of tools on technical cooperation and assistance provisions envisaged in the composite text.

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