Biological Weapons Convention (BWC)

BWC Review Conference Bulletin, December 6, 2001

Endgame in Earnest: First Draft of Final Declaration Issued on Penultimate Day

By Jenni Rissanen

The Final Declaration of the Fifth Review Conference of the Biological Weapons Convention (BWC) is beginning to take shape, with a 17-page first draft issued by the Chair of the Drafting Committee, Ambassador Munir Akram of Pakistan, at noon on the penultimate day of proceedings, Thursday, December 6. Finalising the Declaration by Friday will be a major challenge, with agreement so far reached on only five of the Convention's fifteen Articles, plus the Preamble. The crucial and divisive question of follow-up to the Conference is still largely undecided. With time running out, and with bitter memories of the acrimonious and unproductive final night of the Ad Hoc Group (AHG) in July-August in mind, delegates will convene for a night session on the penultimate day of the deliberations, starting at six o'clock on Thursday evening.

The Facilitators, working since Friday, November 30, have assisted in finalising language on the Preamble and Articles II, VIII, XIII, XIV and XV. These form the 'clean' text in the current draft. However, much remains to be done, especially on Articles I, III, VI, and X, in addition to one article (XII - review) not included in the draft. Ambassador Tibor Tòth, Conference President and AHG Chair, has been conducting behind-the-scenes discussions trying to find acceptable formulations on Article XII, with its interrelated and sensitive issues of the future of the AHG and its stalled efforts to draft a verification Protocol, and the follow-up to the Conference. Ambassador Tòth reportedly distributed a draft on the follow-up mechanism at the General Committee on the evening of Tuesday, December 4. It is understood that the draft envisages annual meetings of states parties between the Fifth and the Sixth Review Conference in 2006. The purpose of these meetings would be to assess progress made in implementing measures adopted at this 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 additional measures to strengthen the Convention. Tòth's proposal was initially said to have been received relatively well, albeit cautiously. However, there are now signs that the question of follow-up is far from being resolved, and indeed seems to be heating up: Wednesday's informal consultations reportedly led to a walk out by the American head of delegation.

Beyond the question of follow-up, other difficult issues remain, including the potentially explosive topics of non-compliance, investigations and export controls. The presence of John Bolton, US Undersecretary of State for Arms Control and International Security, means there will be continued and increased attention to the question of non-compliance during the final days and hours. The delegation of the United States has put down some demanding language on this question, wanting the Conference to ask non-compliant states to stop their BW programmes. This, however, will be virtually impossible to agree, especially in view of the US 'name-calling' allegations of November 19. Ambassador Akram has produced compromise language on compliance under Article I in his first draft, proposing that the Conference stress the "vital importance" of full 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". Although there is some speculation that the United States might tone down its demands on the Declaration's language on non-compliance, it remains to be seen whether Akram's compromise language will achieve a breakthrough.

On a related topic, investigations, the news is also troubling. Thursday morning's meeting (December 6) revealed considerable differences among the European Union (EU), Non-Aligned Movement (NAM) and the United States. Ambassador Rakesh Sood of India, the Facilitator on investigations, reported that, despite considerable effort, agreed language remained out of reach. As a result, the draft Declaration's treatment of Article VI simply repeats the language of the Final Declaration of the Fourth Review Conference five years ago.

Mexico, the EU and United States have tabled a range of proposals on investigations. On Thursday morning, the United States reportedly rejected the EU proposal to set up a compliance mechanism under an appropriate international body to investigate suspicious outbreaks of diseases, alleged use and suspicious facilities. The US is in favour of having the Security Council - where it has veto power and could thus block any investigation directed against it - consider complaints and initiate any investigatory measures. The US also wants to limit investigations of outbreaks of disease, disagreeing with the EU that facilities should be covered. Various NAM countries hold yet another view, resisting stand-alone investigation mechanisms. Iran, for instance, wants investigations to be dealt with as part of the all-encompassing framework of a legally binding instrument.

The issue of the transfer of biological agents, toxins and equipment (Article III) continues to be problematic, principally due to the exception taken by many developing countries to existing export control arrangements seen as discriminatory. Ambassador Akram, who has facilitated discussions on this topic, circulated a seven paragraph on Article III on Wednesday (see BWC Rev.Con. Bulletin, December 5, 2001). The main sticking point is the proposal to encourage states parties to consider a set of common principles and guidelines in the field of export controls. Some Australia Group members (an informal export controls regime operated primarily by western countries) maintain they have already harmonised their export control policies. There are also concerns that the proposal might somehow undermine existing export control efforts. The question of transfers appears also under Article X (scientific and technological cooperation). Attempts by Brazil to chart a middle course between the NAM call to establish a Cooperation Committee and the resistance of the western countries' to any such move have not yet borne fruit. The compromise proposed by Brazil's Facilitator envisages a forum for consultation and creation of opportunities for cooperation on matters related to the promotion of scientific and technological exchange and to review the implementation of Article X.

Delegates are expected to continue discussing all these vexed questions on Thursday afternoon, possibly continuing late into the night. In the meantime, the agreed language can be put aside. As in 1996, the draft "reaffirms the importance of the elements in the review of the Preamble contained in the Final Declaration of the Second Review Conference" and pronounces under Article II, covering the undertaking to destroy BW, that any country acceding to the Convention would need to have completed the destruction of its stockpile upon accession and, in the course of its destruction, to have observed all safety precautions to protect populations and the environment. The text on the Geneva Protocol (Article VIII) is nearly identical to the 1996 Declaration: states parties will stress the significance of the 1925 Geneva Protocol, recognising that it "forms an essential complement to the Convention" and noting the actions taken in support of the Protocol, calling on parties to the Protocol to fulfil their obligations and on non-parties to accede. The draft also stresses the importance of withdrawing all reservations to the Protocol, welcoming withdrawals so far and calling upon those countries retaining reservations to withdraw them "without delay". The Conference is also expected to note that reservations concerning retaliation, implying possible use of BW, "even if conditional, are totally incompatible with the absolute and universal prohibition". In addition, text is now ready on the non-controversial Articles XIII (unlimited duration of the Convention), XIV (signatures, ratification, accession and entry-into-force) and XV (languages).

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