Disarmament Diplomacy

Issue No. 50, September 2000

BWC Protocol: US Testimony

State Department Official

Testimony by Ambassador Donald Mahley, State Department Special Negotiator for Chemical and Biological Arms Control, to the House Committee on Government Reform Subcommittee on National Security, Veterans' Affairs and International Relations, September 13, 2000.

"...The BWC is one of the few arms control agreements having no verification or compliance provisions. In order to review the functioning of the Convention, the States Parties convene a Review Conference every five years. ... By the time of the 1991 Review Conference, there was dissatisfaction with the efficacy of the confidence-building measures. ... The final document of the 1991 Review Conference established the 'Ad Hoc group of Governmental Experts' (later known by the nickname 'Verex') to explore potential measures to strengthen the BWC. This group met frequently for over two years, and produced a report containing 21 measures they recommended for further study as potential mechanisms to strengthen the BWC.

In 1994, the States Parties convened a Special Conference to review and accept the report of the Ad Hoc Group of Experts. The final document of the Special Conference established a further group, the Ad Hoc Group of States Parties to the Biological and Toxin Weapons Convention, chartered to develop a legally binding addition to the BWC to strengthen confidence in compliance with the Convention. That Ad Hoc Group has been meeting several times a year in Geneva since 1995 in an effort to negotiate such a Protocol. ... At the 1996 Review Conference of the BWC, the States Parties agreed as part of the consensus final document to urge the Ad Hoc Group to expedite its work. They set as a target date for completion of a Protocol and its recommendation for adoption by all States Parties the timing of 'as soon as possible before the next Review Conference.' The Review Conference in question is scheduled for 2001, likely in November. ...

Substantial progress has been made in Geneva over the past year toward achieving this goal. But the United States will not accept a Protocol that undermines rather than strengthens national and international efforts to address the BW threat. There is much serious work still to be done. I will not try to catalog all of the outstanding issues. However, some of the most crucial include:

How will on-site activities allow for the protection of both national security information not connected to biological weapons activity and commercial proprietary information of great intellectual and financial value to our industry?
How will the Protocol protect the United States, with the largest biodefense program in the world, from having to reveal either the promising defensive capabilities we are exploring or the areas of vulnerability where we have not yet been able to find appropriate biodefense against a potential enemy?
How will the United States be able to continue to work with like-minded states to stem the potential proliferation of biological weapons capability to states of concern by reducing, or at least complicating, their access to the equipment, technology, and materiel that would most easily be misappropriated for illicit purposes?

These and other questions must be answered constructively for the United States to be able to accept the outcome of the negotiations. At the same time, answers that are constructive from our perspective may be contrary to the wishes of other participants in the negotiations. Thus, having made a lot of progress in the negotiations does not mean we have reached a point where an 'end game' is either present or on the predictable horizon.

One of the things that makes progress in the negotiations unpredictable is the unique nature of this effort when compared to the other experiences usually cited as models for our work. A classic example of an overstated parallel is with the Chemical Weapons Convention. One of the levers available to forge a successful conclusion to the Chemical Weapons Convention negotiations was the fact that the Convention provided the legal basis for banning chemical weapons. This was a valuable component of the overall Convention. In the biological weapons case, the ban on such weapons is already in place, and has been since 1975. This means that in the negotiating dynamic between the states seeking greater security and the states seeking greater access to technology and benefits, the security benefit is weakened. Conversely, security costs associated with any protocol would also differ. The same pre-existing ban on BW reflected in the Convention means there would be no forfeited military option by agreeing to a BWC Protocol. The a priori existence of the BWC complicates negotiating trade restrictions against non-parties to the Protocol. In the Chemical Weapons Convention, trade with non-parties in Schedule 2 chemicals was deliberately prohibited three years after entry into force. This was done in part to provide an economic incentive for states to join the Convention.

There are states proposing a like ban on trade in some biological technology, equipment, and materiel with those states that choose not to become parties to the Protocol. However, only States Parties to the BWC are eligible to become parties to the Protocol. Thus, all the future parties to the Protocol will previously have undertaken the obligations of the BWC, including those in Article X of that Convention. Article X says that you shall implement the Convention in a fashion to '...avoid hampering the economic or technological development of States Parties to the Convention...' An outright ban on trade in some biological commodities against other states that are party to the Convention but not to the Protocol would thus contradict the Article X obligation in the BWC. We can debate the utility of such an incentive tool. However, it is simply not available in this instance.

The Chemical Weapons Convention is also frequently cited as a parallel because of its provisions to protect proprietary information during on site-activities at commercial installations. However, the nature of proprietary information is very different between the chemical and biological industries. Some entities, including both states and non-government organizations, argue that the success of the Chemical Weapons Convention and the relatively straightforward procedures used to protect industry interests there means that biological firms are equally safe from damaging disclosure under any BWC Protocol regime.

In one sense, there is an accurate parallel between the Chemical Weapons Convention and the draft BWC Protocol. That is the principle of 'managed access.' This principle is the concept that national security or proprietary information rightfully can be protected during an on-site activity, by devising alternative methods to those requested by members of the international organization to answer any questions they ask. However, application of the principle is very different between chemistry and biology. While proprietary or national security concerns have proven to be relatively localized and manageable in Chemical Weapons Convention inspections, there is legitimate concern that managed access could be much more complicated to apply in the context of activity at a biological facility, and thus while being useful, would not necessarily provide the level of security we require. To supplement managed access, the United States is seeking other provisions to the Protocol to add protection. These include tightly crafted declaration language, provision for a majority vote in the international organization before a clarification visit or investigation could be authorized, timelines to allow thorough preparation of a facility in advance of a visit or investigation, and far less intrusive activities in any non-challenge visit.

I would only point out a few fairly simple differences.

The most sensitive proprietary elements of chemical processes frequently are temperature, pressure, duration, and proprietary catalysts to improve the reactions. The relevant interaction of corrosive chemicals takes place inside opaque reactor vessels. Thus, by concealing the computer monitoring screens and controlling sampling, the proprietary values can be protected. In biology, the very configuration of the operation or the kind of media being used to stimulate activity is frequently proprietary, and much more difficult to mask.
In chemical reactions, it is reasonably straightforward to do mass balancing equations to demonstrate what reactions are being carried out. In biology, given the living nature of some of the activity, such input-output balancing is not sufficient to demonstrate the nature of the intermediate activity.
A sample of a chemical product will only confirm that which has already been stated - what the product is. In biology, even a small process or proprietary organism sample could well reveal not only what the product is, but the proprietary process from which it was produced. ...

In the Chemical Weapons Convention negotiations and PrepCom, a great deal of effort was devoted to making declarations as unambiguous as possible. Despite those efforts, it has required a great deal of outreach work by the United States Government and the American Chemical Council to make our own declarations as accurate as possible. Even then we have not achieved total accuracy in the initial declarations. Other countries have done an even less accurate job. This result puts severe pressure on the task of drafting declarations for the BWC Protocol. The correspondence of information provided by declarations to unique capability for biological weapons work is more dubious. Thus, we have tried to focus on the most relevant activity for declaration. However, a much wider variety of activities could become part of a BW capability. A much smaller magnitude of activity is required to reach a militarily significant capability. At the same time, since there are legitimate activities involving the same kind of actions and even the same materials, the issue of compliance hinges largely on intent. This means that accusations could require addressing the issue of 'things not being done.' You recognize the logical difficulty which proving such a negative premise entails.

All of this means that the US and the Ad Hoc Group face a real challenge to develop a set of declaration requirements that will be:

relevant to possible proliferation activity;
unambiguous enough to be accurately declared by both US government facilities and commercial facilities;
widely enough located in the world to provide access to countries of concern;
not overly burdensome on US activities or unbalanced, either from a commercial or security perspective;
free from the political complication of leaving unanswered questions that could impair the ethical reputation of US facilities. ...

I do not wish to convey the impression that there is no potential benefit from a satisfactory Protocol, nor that it is a hopeless technical problem. It is extraordinarily difficult, but that makes it a worthy challenge. First of all, this is not an issue of verification. As you know, the United States has substantive requirements for attributing effective verifiability to a treaty. It involves being able to make a judgment of high confidence in detecting a violation before it can become a militarily significant threat. I have already noted that a small program can become a threat. Likewise, the inherent 'cover' for an illicit program in legitimate activity makes differentiation much more imprecise. The United States has never, therefore, judged that the Protocol would produce what is to us an effectively verifiable BWC. There is, however, real value in increasing the transparency associated with biological activity. What we have sought in the negotiations is greater transparency into the dual-capable activities and facilities that could be misdirected for BW purposes. This could, in our view, complicate the efforts of countries to cheat on their BWC obligations. Let me be clear - the United States already faces a BW proliferation problem. Our objective for a Protocol is to enable us to gain more information about and insight into activities of potential concern.

The United States believes investigations are one of the most essential elements of a BWC transparency regime. Actually talking to scientists and production workers on the ground, as well as observing the atmospherics at a facility, are ways for experienced observers to detect anomalies. One can never discount either the 'whistleblower' prospect of an employee or the ineptitude of a cover-up of an illicit activity. While there is no way to judge the likelihood of such an outcome, the deterrence component is useful since it complicates the life of a potential proliferator. The obverse of the previous proposition is the issue of impact on United States installations and firms from the same kind of on-site activity. The differences between chemical and biological technologies, as well as the different challenges in defining total prohibition of chemical weapons in the Chemical Weapons Convention verses the prohibition of only offensive BW activity in the BWC remain relevant. However, there are some principles learned in the Chemical Weapons Convention that inform the procedures we are negotiating for the BWC Protocol.

The principle of managed access, we believe, can effectively prevent loss of national security or proprietary information, while still allowing US installations to demonstrate the benign nature of their activities. With respect to private sector installations, I would like to assure the committee that the executive branch is fully cognizant of our responsibility to be a supportive interlocutor with the international organization conducting on-site activity. The Chemical Weapons Convention inspections already conducted on both Department of Defense facilities and at commercial firms have thus far demonstrated our ability to fulfill the obligations of the Chemical Weapons Convention without sacrificing sensitive national security or commercial proprietary information. We are using the lessons and experience learned to explore ways to achieve an equal level of protection in biological activities, and we are confident we can do so by the time any BWC Protocol is in place.

The advantage United States installations possess is that we have a good story to tell. Our commercial firms are actively engaged in researching, developing, and producing products that benefit mankind. Our defense installations are pursuing ways to detect biological weapons early enough to minimize their impact and to protect our armed forces and civilian population in the event of a biological weapons attack. We believe, if the declaration requirements and on-site access provisions are properly crafted, it is possible to portray those efforts completely enough to satisfy any on-site interrogator while still protecting the sensitive elements of the activity. Thus, the impact on US facilities should be manageable, while the value of on-site activity in other countries to transparency and our BW non-proliferation efforts is real. ..."

Source: Text - Ambassador Mahley Gives Status Report on BWC Compliance Protocol, US State Department (Washington File), September 19.

Defense Department Official

Testimony by Susan Koch, Deputy Assistant Secretary for Threat Reduction Policy, to the House Committee on Government Reform Subcommittee on National Security, Veterans' Affairs and International Relations, September 13, 2000.

"... In pursuing the Administration's goals, the Defense Department has worked to ensure that US negotiating positions support a Protocol that would complement the non-proliferation and counterproliferation tools that we already have - and which indeed we are striving to buttress. ... The elements of the negotiations that most directly affect Defense equities are measures being considered on biodefense and related declarations, on-site activities, and export controls.

Let me turn first to this last issue, since in some ways it is the simplest and most straightforward. ... We would not support a Protocol that proscribes, curtails, or otherwise undercuts national export controls or multilateral political arrangements such as the Australia Group. Such multilateral regimes are vital to facilitate voluntary cooperation among like-minded states. Nor would we support any negotiating outcome that would infringe on States Parties' sovereign right to deny exports on a national basis, as they deem fit.

Recognizing that despite our best efforts, non-proliferation and arms control measures will never completely eradicate the threat of biological weapons proliferation, the Defense Department also places an extremely high priority on the ability to manage the consequences of any biological weapons proliferation or use. ... As part of our wider Counterproliferation Initiative, the Defense Department is focusing unprecedented resources on improving US biodefense capabilities. Other agencies are involved in closely related efforts. Planned expenditures for defense against chemical and biological weapons total well over $5 Billion in DoD alone for Fiscal Years 2002-2007 for research, development, testing, and evaluation (RDT&E) and procurement. Our biodefense program focuses on multiple areas including collective and individual protection, detection, treatment, and decontamination, and involves numerous government, contractor, and academic facilities of various sizes. We are also working to increase biodefense cooperation with friends and Allies. Within NATO, the high-level Defense Group on Proliferation (DGP) continues to work to expand biodefense cooperation. For example, just this past July, the DGP sponsored a major biodefense seminar in Budapest, drawing together an impressive array of technical experts and policy officials. Additionally, the United States now has over sixty individual cooperative agreements in chemical and biological defense with more than twenty friends and allies around the world. ...

Because the US biodefense program is so much larger than any other, it is inevitable that the United States will bear the greatest burden under any relevant BWC Protocol declaration requirement, including those that we ourselves are proposing. With that in mind, we have designed our approach to the treatment of biodefense and associated declarations in a BWC Protocol to meet three basic objectives. These are to: (1) allow consistent, accurate implementation; (2) maximize the likelihood that activities in countries of concern would be captured; and, (3) not reveal gaps and vulnerabilities in US biodefense efforts and those of our Allies. Our proposal seeks to achieve these goals by focusing on those current research and development (R&D) activities that are the most relevant for potential non-compliance (i.e. pathogenicity, virulence, aerobiology, and toxinology), at sites conducting more than a specified 'level of effort'. Thus, declaration requirements would be based on a combination of the type of work and the amount of work on relevant activities at a given facility. At the same time, we are also seeking to include a minimum declaration requirement, in order to ensure that countries of concern that might have relatively small biodefense programs will nonetheless have to declare them.

Closely related to declarations is the issue of on-site activities, such as visits and investigations. ... [W]e must recognize that on-site activities for BWC will be very different from other treaties, including CWC. For example, BWC visits will monitor activities that are not prohibited, or even restricted, by the Convention. Nonetheless, that experience, particularly in CWC, offers some useful lessons for BWC regarding our ability to protect sensitive information and the possible costs involved.

Since CWC entered into force, approximately 215 inspectors from the Organization for the Prohibition of Chemical Weapons (OPCW) have participated in on-site activities at DoD facilities. These include more than 270 visits and inspections of typically 3-6 days at 47 chemical weapons storage and 56 former production facilities, as well as continuous monitoring at chemical weapons destruction facilities. The Office of the Secretary of Defense has centrally overseen and managed the preparation for and hosting of CWC inspections, through a DoD Chemical Weapons Agreements Implementation Working Group. The Military Services and various DoD components have individually established implementation support offices which actively participate in this process. In addition to more general treaty familiarization courses, the Defense Threat Reduction Agency's (DTRA) Defense Treaty Inspection Readiness Program (DTIRP) provides training on facility preparation and security countermeasures to government and defense-industry facilities. Although there have been no CWC challenge inspections to date, the Military Services have held exercises to test their preparedness for this possibility, and DoD has developed guidance, exercised procedures, and is organizing a mock challenge inspection for next year with actual OPCW inspectors.

To the best of our knowledge, none of these CWC activities has resulted in the disclosure of sensitive information, inadvertent or otherwise. At the same time, the costs involved have proved less than might have been expected when the negotiations began. Between CWC entry into force in April 1997 and June 1999 (the most recent figures available), DoD spent approximately $26 Million directly related to supporting CWC inspections. This money was spent escorting inspectors while they conduct inspections at DoD facilities, including dispatching advance teams to the facilities and providing transportation and accommodation for inspectors and DoD escorts. All told, total DoD costs for preparation and execution of the CWC, including from before entry into force through today, amount to some $518 Million (excluding relatively low-cost site preparation costs by special programs offices and DTIRP). This total includes all DoD activities to meet our CWC requirements, such as determining declarable items and facilities, assembling declarations, developing implementation plans for routine inspections and challenge inspections, conducting practice routine and challenge inspections, and conducting research and development for improving verification and compliance activities and reducing impacts of those activities on DoD facilities. ...

Compared to CWC, the on-site activities that the United States is arguing for in a BWC Protocol would be less intrusive, far fewer in number, smaller in scale, shorter, and diffused among a dramatically larger universe of facilities. We are proposing visits to a limited number of BWC-relevant facilities to increase transparency, promote fulfillment of declaration obligations, and familiarize a BWC Technical Secretariat with a country's biotechnology and biodefense infrastructure - not inspections at declared facilities to validate declarations that last up to a week. All visits and investigations would allow the United States to manage access through provisions equivalent to or even more protective than in CWC. Additionally, as in CWC, the US is insisting that a Protocol include sufficient timelines between notification and commencement of visits or investigations, in order to allow time for site preparation. The US is also seeking a distribution formula that would ensure that no State Party receives more than 20 non-challenge visits per five years, with no more than two of these at any one facility. Finally, in contrast to CWC, a Protocol would involve no continuous monitoring requirements. ...

In addition to differences between CWC and BWC inspection modalities, BWC measures will for the most part focus on a different universe of facilities. We therefore have worked to ensure that facilities that are likely to be affected are fully apprised of negotiating developments. For example, over the past two years my staff has provided classified quarterly briefings to relevant DOD elements and defense industry, soliciting reactions to various proposals under consideration at the Protocol negotiations in Geneva. This feedback has helped to shape USG [US Government] positions on issues such as visits and declaration triggers and formats. ..."

Source: Text - DOD Official on Status of Biological Weapons Convention, US State Department (Washington File), September 19.