Biological Weapons Convention (BWC)

BWC Review Conference Bulletin, November 30, 2001

Differences and Difficulties as Delegates Consider Wide Range of Proposals

By Jenni Rissanen

The pace of work of the Fifth Review Conference of the Biological Weapons Convention (BWC), taking place in Geneva from November 19-December 7, slowed during the second week with delegates ploughing through a large number of proposals on language for inclusion in the Final Declaration. Although most delegations submitted their proposals to the Secretariat on the day of the deadline - Friday, November 23 - a few late submissions arrived on Monday. The Chair of the Committee of the Whole, Ambassador Markku Reimaa of Finland, released a two-part, 90-page compilation of proposals on Monday afternoon. The informal document reproduces the 1996 Final Declaration language and the new proposals side by side in two columns. Delegations spent the majority of the second week getting familiar with, evaluating and commenting on the proposals in the Committee of the Whole. The Committee completed its read-through of the compilation on Thursday evening and Ambassador Reimaa submitted his report on Friday morning. Attached to that report was a new version of the compilation, listing all proposals and identifying the potential for common ground. Reimaa said the Committee's work had been conducted in "a constructive sprit". With the task of the Committee of the Whole completed, the Drafting Committee, chaired by Pakistan's Ambassador Munir Akram, will now take on the challenge of furthering hammering out the considerable differences remaining. Akram will be assisted by eleven facilitators, all trying to identify acceptable formulations for the Final Declaration. The President of the Conference, Ambassador Tibor Tóth of Hungary, has asked the facilitators to produce "readily usable formulations" by next Tuesday, December 4, in view of the limited time left. All but one of the facilitators has been chosen, the exception concerning the appointment dealing with the controversial question of transfers.

The proposals, large in volume and diverse in aspiration, cover a multitude of topics covered by the Convention's Articles I-XV. It is clear that most of the potential sticking points are not new but familiar from the travails of the Ad Hoc Group (AHG) negotiating a verification Protocol, or from past Review Conferences: export controls, scientific and technological cooperation and - especially after the US allegations in its dramatic opening statement (see below, and BWC Rev.Con Bulletin, November 19) - the controversial issue of possible clandestine BW programmes in non-compliance with the Convention, as well as questions how to deal with them (investigations). Many of the proposals also consider the future of the Protocol and the AHG process, reflecting widely divergent views and hopes.

The Non-Aligned Movement (NAM) wants the Final Declaration to recognize "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 final 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 wants 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 has suggested that a Special Conference be convened to review the AHG's work and renew its mandate "until its work has been completed". Iran wants the Conference to reaffirm "the multilateral negotiation on a legally binding instrument", and to set the objective of adopting such an instrument at "a Special Conference prior to the Sixth Review Conference". Like the NAM, the European Union wants the Conference to note "with regret" the Group's inability to complete its work. However, unlike the NAM, the Union does not wish the Final Declaration to call for the work's completion or the reconvening of the Group. The EU wants the Conference to recall the composite text proposed by the Chair of the AHG, and to note more conservatively that it was "unable to command consensus as a basis for a legally binding instrument to strengthen the Convention". The United States, predictably, is understood not to have mentioned the Protocol or the AHG in any of its proposals.

Given the recent challenges to the Convention in form of the use of anthrax as a weapon of terror, the derailed Protocol talks, and the potential risks posed by the rapid development of science and technology, the question of some kind of a follow-up to the Conference has received much attention. Australia, Canada and New Zealand want 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 "supports 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" by the states parties 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 its proposal, the US is apparently envisaging one meeting as opposed to more regular and frequent events advocated by some of its Western Group partners. Curiously enough, the EU has not yet tabled any proposal on a follow-up mechanism, although many of its members are known to favour more frequent and regular meetings within the framework of the Convention.

Corridor discussions indicate that many countries pay especial importance to this question of a follow-up mechanism, and are likely to judge the Conference's outcome particularly on this criterion. There is a general feeling that only so much can be achieved at the Conference itself, especially given current political realities, making it vital to establish a forum to continue discussions and take action when needs or opportunities arise. So far, follow-up proposals are rather vague, with countries wary of putting their names to specific mechanisms or discussing various options in detail. However, there has been talk about annual meetings of states parties and preparatory committee meetings for the Sixth Review Conference, as well as about establishing a Scientific Advisory Panel, as suggested by Britain. Questions about the powers and work programmes of such meetings are beginning to emerge, with NAM countries in particular stressing they will need to function as more than talking shops. The NAM proposed on Thursday, November 29, that states parties establish a Cooperation Committee to support the implementation of Article X (scientific and technological cooperation).

Proposals on non-compliance are likely to be difficult to resolve. The United States - which used its November 19 statement to name four states parties (Iraq, Iran, North Korea and Libya), plus a signatory state (Syria) and non-BWC member (Sudan), of acting in violating of the Convention's norms and provisions - is seeking 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 are also called upon to terminate their activities. It is clear that including this controversial proposal in the Conference's outcome will be virtually impossible. It will almost certainly be opposed by those countries accused of standing in non-compliance, as well as by others suspicious of the US motives. Some fear the proposal might in fact undermine the BWC by acknowledging the operation of clandestine BW programmes, especially if no action in response is taken within the framework of the Convention. Overall, the issue of non-compliance is far more attention at the Conference than expected some weeks ago. The United States' statement, rumours that John Bolton, Undersecretary of State for Arms Control and International Security, might return to the Conference for its final days, as well as the message the US delegation is spreading among delegates that it has little room to manoeuvre or shift its stance, all imply that the issue of non-compliance may develop into a major bone of contention, possibly not being tackled decisively until the very last hours. With media reports that Washington is about to extend its on-going struggle against terrorism and WMD proliferation outside the borders of Afghanistan (possibly to Iraq), the issue may loom even larger in coming days.

The United States further wants 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". Furthermore, the US wants the Conference to stress "the need for all States Parties to deal effectively with compliance issues" and in this connection "agree to clarify and resolve compliance concerns by mutual consent", suggesting a voluntary clarification procedure. Washington further advocates a politically binding agreement to set up "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. Although the requested country would "be required to provide access to the site of the outbreak on a timely basis", the US is proposing that "all access within an area of investigation shall be controlled by the investigated state party". The EU is 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 United States, would extend investigations to facilities. It proposes, 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 want 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 1925 Geneva Protocol. They also want to stress that in cases of use, the United Nations would be called upon to take measures "expeditiously". Iran, on the other hand, is satisfied with the framework Article V of the BWC offers in resolving any problems and wants 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 response to the US allegations of November 19, Iran proposes that countries "refrain from baseless allegation and accusation against each other" and calls on any complaint to "include factual and concrete evidences and documents confirming its validity". Libya, another accused state party, has joined Iran in this call.

As expected, Articles III (non-transfer of agents, toxins, weapons or delivery vehicles) and X (fullest possible exchanges of equipment, materials and scientific and technological information for peaceful purposes) inspired a large number of divergent proposals. For example, the United States is keen to have the Conference 'realize' 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, on the other hand, wants the Conference to note "with concern the erroneous practices or negative tendencies" in the implementation of Article III and be of "the view that such practices or tendencies hinder of harm the normal international exchange and cooperation for peaceful purposes". Furthermore, together with Cuba, India, Indonesia, Iran, Libya and Pakistan, it wants 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 want a call for the establishment of a Cooperation Committee "tasked with monitoring effective implementation of Article X". The proposal was endorsed by the NAM as whole on Thursday. Together with Sri Lanka, China, Cuba, Iran, India, Indonesia, Libya, Pakistan are also proposing 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 (WP.432).

Between these two extremes lie a range of proposals by the European Union, the NAM and some individual countries. The EU wants the Conference to note the "continued importance of Article III" and to call upon those countries that have not already done so to "adopt legislative and regulatory measures to ensure export control over dual-use items". It is 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 is hoping to have the Conference recognize 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" on those controls, Brazil is seeking 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 wants 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.

References to confidence-building measures (CBMs) may also be hard to agree. South Africa wants 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 EU has proposed that the Conference call upon states parties to consider making it mandatory to provide information on penal legislation (CBM E) and animal vaccines, microbially based pesticides and biocontrol agents (CBM G). However, some NAM countries are said to have doubts, believing that CBMs should by their nature be voluntary rather than mandatory. It is understood they would accept legally binding measures only in the wider context of an all-encompassing multilaterally agreed Protocol.

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