Disarmament Diplomacy

Issue No. 58, June 2001

Opinion and Analysis

Four Decades of Missed Opportunities to Strengthen the BWC: 2001 Too?

By Nicholas A. Sims

Introduction

Between July 23 and August 17 the most active of the 143 states parties to the Biological and Toxin Weapons Convention (BWC) will face a historic choice. They will gather in Geneva for the 24th session of the BWC Ad Hoc Group (AHG), which is now in its seventh year of work on a legally-binding instrument to strengthen the Convention. Since July 1997 this work has focussed more closely on the negotiation of a BWC Protocol. Most of the 50-odd governments which have taken part regularly in the Ad Hoc Group are broadly ready to set the seal on its work by concluding a Protocol this year. Their mandate only runs to the BWC Fifth Review Conference (November 19 to December 7, 2001). Indeed, it envisages fulfilment of the Ad Hoc Group's task even earlier, with the Protocol having been adopted and opened for signature at a Second Special Conference, probably in London, "as soon as possible before the commencement of" the Fifth Review Conference in Geneva.

So what is the problem? If the majority goes ahead with the Protocol on this long-established timescale it will risk alienating the United States, where the Bush administration's policy review has been widely rumoured to find the Protocol unacceptable; and without a US signature it is unlikely to get a Russian or Chinese one either. So the majority faces a range of policy choices: to discontinue the Protocol-drafting negotiations altogether; to slow them down to the pace of the most tentative (the 'low gear' future for the Ad Hoc Group said to be favoured by some in Washington); to let the US proffer its preferred alternative to the Protocol (supposing it can find inter-agency agreement on one) and see whether anyone else wants to sign on to it; or to go ahead without US approval.

Jenni Rissanen's reports for Disarmament Diplomacy have kept readers up to date with recent sessions of the Ad Hoc Group and the stated positions of the principal players on the issues in dispute. These include, notably, the issue of whether the 'endgame' Chairman's Text, offered by Ambassador Tibor Tóth of Hungary on March 30 2001 should supersede the Rolling Text which had evolved since 1997 but was still encrusted in square brackets, footnotes and variant readings. Those governments least ready to embrace the 'endgame' and least content with the compromises reflected in the Chairman's Text have continued to champion the status of the Rolling Text as the only permissible basis for negotiating the Protocol.

This article will return to the choices about to be faced by the Ad Hoc Group at its 24th session after looking back over four decades of missed opportunities. The BWC's history is not even one of benign neglect. In historical perspective, most of its states parties appear to have hoped to get the advantages of biological disarmament on the cheap. Few of them have made any effort to treat it as an embryonic disarmament treaty regime which needs nurturing, reinforcing and steering into a constructive and balanced pattern of evolution.

By failing to strengthen the Convention when they had the chance, its states parties have left it perilously fragile. Having missed opportunities in 1971, 1981 and (above all) 1991, will they do the same in 2001?

1971

Although the BWC was not opened for signature until April 10 1972, its negotiation had been completed in 1971. On March 30 the Soviet Union dropped its long-standing opposition to negotiating a BWC alone. It had previously insisted on a combined chemical and biological disarmament treaty. The Soviet concession was gratefully accepted: too gratefully, perhaps, if it proceeded to inhibit others from pressing substantive points where Soviet positions were likely to weaken the treaty text. At Geneva, between April and August 1971, US-Soviet bilaterals gutted the draft convention of many (not all) of the strong points derived from the UK Working Paper on Microbiological Warfare in 1968 and UK draft conventions of 1969 and 1970.

They seem to have done so because it was thought more important by President Richard Nixon, and especially National Security Adviser Henry Kissinger, to get the BWC - almost any BWC - finished at speed, and clear the way for the 'endgame' of SALT I, the Strategic Arms Limitation Talks concluded in May 1972, rather than spending longer getting the content right.

Connoisseurs of historical irony may note that in 1971, as now in 2001, strength of feeling about the ABM Treaty on the part of a US President and his team had negative consequences for US-European relations and an unfortunately overshadowing effect on the BWC.

So much of value was lost in these BWC bilaterals that when, on August 5 1971, the USA and USSR presented identical draft conventions in the Conference of the Committee on Disarmament (CCD), no other Western state would co-sponsor the US one. Over the next seven weeks those Western, neutral and non-aligned states which favoured a stronger BWC tried to remedy the worst defects. By September 28 1971 Canadian, Italian, Netherlands and UK co-sponsorship was secured for a revised draft. They had, as the UK Ambassador ruefully remarked, compromised to the maximum possible extent.

By that time the BWC had lost its explicit ban on use of the weapons (which it took until 1996 to restore, and then only through the Final Declaration of the Fourth Review Conference under pressure from an Iranian initiative formally to amend the Convention's title and Article I). It no longer made any attempt to constrain research; indeed, it no longer mentioned research at all. Likewise it now left out all reference to the UN Secretary-General as an investigator in certain circumstances of alleged breaches of the BWC. It was a poor, gutted BWC that was finally transmitted to the UN General Assembly.

Yet the CCD at Geneva was not the only missed opportunity to strengthen the BWC. Once it reached New York it was referred to the First Committee for scrutiny. There the initiative passed to those neutral and non-aligned states which had been thwarted at Geneva. Argentina, India, Mexico, Morocco, Nigeria and Sweden offered amendments which would have improved the BWC before the plenary Assembly commended it for signature. There were recent precedents: in 1968 the Assembly had added Chilean and Nigerian language to Article IV of the NPT, and in 1969 it had judged the Sea Bed Treaty not yet good enough and sent it back to Geneva with a "could do better" rebuke to the CCD.

The biggest failure concerned the role of the Security Council. In the BWC's only complaint procedure, Article VI referred complaints to the Council. But what if the complaint was against a Permanent Member, or against the friend or ally of a Permanent Member? It could invoke the veto to stop the complaint being investigated (on the 'chain-of-events' argument). The neutral and non-aligned states, led on this issue by Alva Myrdal of Sweden, had long sought an improved Article VI in which consideration of a complaint would proceed through a veto-free procedural stage so as not to block a fact-finding investigation (an investigation in which all states parties are obliged to cooperate with the Council). The possibility of veto would be restricted to a later stage.

This mild amendment, although fully in accord with the UN Charter (where Article 27 limits the veto to non-procedural matters) before its 'chain-of-events' reinterpretation in favour of the Permanent Members, got nowhere. All the amendments put forward in the First Committee were eventually withdrawn. The Convention commended by the plenary Assembly on December 16, 1971 was the precise text transmitted from Geneva, unimproved. An opportunity had been missed and Article VI was left tainted by an avoidable inequality of obligation. Anyone wanting to bring a complaint under the BWC now knew that any Permanent Member could block it from the start. Little wonder, then, that the complaint procedure has remained unused from that day to this.

1981

At the height of the Second Cold War the BWC could have been used to explore concerns over non-compliance, but the states parties missed that opportunity too. Specifically, in 1981 the United States made its third demarche to the Soviet Union under BWC Article V in the 'dialogue of the deaf' over the Sverdlovsk incident. In April 1979 anthrax spores had been released in an industrial accident at a military facility in Sverdlovsk (now known again by its pre-Soviet name Yekaterinburg). The United States exercised its right to consult the Soviet Union and request its cooperation "in solving any problems which may arise in relation to the objective of, or in the application of the provisions of, the Convention." The Soviet Union provided an explanation for the anthrax outbreak in the human population of Sverdlovsk (illegal trade in contaminated meat) which it regarded as fulfilling its obligation under Article V. The United States regarded the explanation as implausible. Defector evidence in 1979 suggested that what had occurred was a pulmonary form of anthrax which was consistent with inhalation of spores, not the intestinal form associated with the eating of contaminated meat. But the Soviet Union stuck to its story.

The impasse might have been broken if the United States had moved from the bilateral to the multilateral mode of consultation under Article V. Provision had always existed for the use of "appropriate international procedures" and the First Review Conference, in a negotiating breakthrough on March 20 1980, had identified one such procedure. This was the "consultative meeting open to all states parties at expert level" which was henceforth available as a contingency mechanism for BWC compliance diplomacy - but which was left unused until the Cuban thrips palmi complaint against the USA in 1997. The United States could have invoked this multilateral procedure in 1981 when it reached the end of the bilateral road over the Sverdlovsk incident.

Other states had other concerns. Cuba was alleging US complicity in spreading dengue fever among its pigs. The US was concerned about alleged use of mycotoxins in Indochina and related allegations from the war in Afghanistan. The Soviet Union was concerned about the US biological defence programme. Any or all of these compliance concerns might usefully have been taken up in the multilateral arena of an Article V consultative meeting. Instead, they were left to fester. Unilateral accusations hung in the air, unproven and unretracted. That some (notably the Sverdlovsk incident) now appear to have had more substance than others is beside the point. So is the necessarily incomplete form of the procedure before later Review Conferences filled in the gaps in politically easier times. There was a collective failure even to try to use the one multilateral procedure which the states parties had identified in 1980 as available for them to use in just the circumstances that prevailed in 1981.

1991

In retrospect, the most far-reaching missed opportunity that can be laid at the door of the BWC states parties occurred in 1991. It resulted from regarding Iraq as a unique case. Insistence on seeing Security Council resolutions 687, 707 and 715 as putting in place "the punitive treatment of a defeated aggressor" produced a dogmatic refusal even to consider applying more widely relevant aspects of UNSCOM's ongoing monitoring and verification (OMV) system, which had been designed to prevent diversion of resources from Iraq's pharmaceutical and other industries to biological weapons purposes.

Perhaps it was too much to expect the states parties to adopt voluntarily for themselves, as a farsighted investment in their common security, a suitably adapted version of the very OMV system that Rolf Ekéus and his fellow UNSCOM commissioners had persuaded the Security Council to approve under Resolution 715 for imposition on Iraq. But in 1991 the idea was articulated and could have been taken up. Instead, so insistent was the US delegation to the Third Review Conference on the uniquely "punitive treatment of a defeated aggressor" having no wider relevance whatever that the Swedish diplomat Johan Molander, well-known in Geneva as one of the most thoughtful CD architects of the Chemical Weapons Convention and then serving as Ekéus's principal assistant, was prevented from briefing BWC delegations on the early lessons of UNSCOM's biological and chemical weapons inspections. Having gone along with that instance of US censorship, states parties were unlikely thereafter to use the OMV system creatively as a means of strengthening the BWC.

In 1991, however, the most obvious missed opportunity was an institutional one. The BWC had always suffered from the lack of an implementing organisation. In the long intervals between review conferences it had languished for want of attention. Neither the UN secretariat nor the BWC's Depositary Governments (UK, USA, USSR) had more than minimal responsibilities for its care.

The Third Review Conference came close to remedying this long-term institutional deficit. But at the last moment it drew back from the brink. It failed to create an inter-sessional committee to exercise collective oversight over the BWC treaty regime in the round; it failed to implement even the more modest proposal for an interim body to help organise the expanded programme of confidence-building measures which it had just agreed to build on the foundations laid in 1980 and 1986; it even failed to agree on the most modest initiative of all, a two-person "secretariat unit" within the UN to facilitate the successful launch of this expanded programme. By common consent, lack of imagination killed the first; personal and national rivalries over chairmanship the second; meanness over financial contributions the third. "For a few dollars more", complained the observer from the Federation of American Scientists, it could have survived. But the opportunity was missed.

Ten years later the same arguments for supportive institutions for the Convention are having to be made all over again, as the institutional deficit resurfaces.

2001

So will 2001 be another year of missed opportunities for the BWC? It will be, if the states parties fail to conclude the Protocol. It could even end up as a year of doubly missed opportunities, if they compound that failure by letting an acrimonious collapse of hopes for the Protocol spill over into, and swamp, the Fifth Review Conference. What the BWC needs from its states parties in 2001 is two things above all: (1) success with the Protocol followed by (2) imaginative use made of the Fifth Review Conference to set its course for the future.

Decision Time for the United States

First, will the United States reject the Protocol?

Not if the Federation of American Scientists can help it. In Congressional testimony on June 5, its long-time BWC expert Barbara Hatch Rosenberg urged US acceptance of the Chairman's Text as "a compromise that makes reasonable trade-offs on all of the major issues, providing a sound basis for achieving agreement on an effective Protocol to strengthen [the Convention] and signify the determination of the international community to enforce it." BWC experts from Europe who have likewise followed the negotiations in Geneva closely have joined forces to offer supportive testimony.

But it may not be enough. US objections to the Protocol also enjoy some expert support, notably from those who choose to judge it (inappropriately, given its nature and purpose) by stringent verification criteria or in a narrowly industrial perspective. The objections undoubtedly gather strength from their political context, which is, regrettably, all too predictably hostile to the Protocol. This context is one in which a new President is seen as reviving the United States' unique, if controversial, capacity for taking unilateral action to identify and punish rogue states; and as championing the supposed interests (however illusory in this case) of ordinary Americans against the potential treaty entanglements into which Europeans, in particular, are trying to lure their country.

A visceral revolt against multilateralism was only to be expected after Clinton, but not its extent and severity. Over issues ranging from the Rome Statute for the International Criminal Court to the Kyoto Protocol for the UN Framework Convention on Climate Change, ratification of a US signature from the Clinton era is currently unthinkable. Even where the treaty in question was US-crafted and has been in force for nearly 30 years, the prevailing attitude is one of profound suspicion: it is the Europeans who are acting protectively towards a 1972 ABM Treaty which for the new administration is an anachronism left over from the Cold War that must not be allowed to obstruct US missile defence plans. Missile defence controversies now overshadow US arms control and non-proliferation diplomacy, and not just with Europe, with potentially as disastrous an effect on chances for the BWC Protocol as the priority given to the original ABM Treaty (and the rest of SALT-I) had on the mid-1971 negotiation of the original Convention. And in neither case was the linkage a necessary one. Both would have been better avoided.

In this climate, to bring the US to the point of signature is an uphill struggle, however often it is explained that this is not a verification protocol, and should be judged by different criteria; that, as Professor Rosenberg stated in the same Congressional testimony, "the Chairman's Text possesses more safeguards for confidential information than the 1993 CWC, to which the United States is already a party and which covers many of the same facilities"; and that on the 'teeth' of the Protocol - compliance declarations, visits and investigations - "the weaknesses in the Chairman's Text are largely there in compliance with past US demands."

US tactics at the 24th AHG session have been the subject of much speculation. Will there be an attempt, as at Oslo in the final negotiation of the Ottawa Anti-Personnel Landmines Convention, to introduce fundamental changes to derail the Protocol (and, if so, will it receive the same robust response)? Or will the blame for collapse of the negotiations be shifted on to another government (and, if so, where is the prospective fall guy)? It is to be hoped that wiser counsels will prevail. This is decision time for the United States and there is still time for the right decision to be taken.

Alternatives?

The supposed alternatives, listed as a range of choices at the beginning of this article, can be quickly dismissed.

Discontinuing the negotiations. Why should all the painstaking work of the past seven years - nearer ten years, if the 'strengthening' process is taken to have been continuous back to the VEREX study - go to waste? Many of those BWC parties which have taken the trouble to negotiate the Protocol have developed a strong commitment to it. They see it as a vital enhancement of the established biological disarmament regime. Their governments are encouraged in that belief by a significant section of the BWC's epistemic community of medical, scientific and other professionals with expert knowledge. Moreover, abandonment of the Protocol now would leave the BWC weaker, in terms of confidence and credibility, than if the negotiations had never taken place.

Slowing down to the pace of the most tentative. A shift up into negotiating mode is a recognised move in disarmament (and other) diplomacy, often the subject of keen debate over mandates in the CD and UN; but a shift down again? What would the AHG do with further sessions in a lower gear? Having missed both the Fourth and Fifth Review Conferences as target dates, its credibility would rapidly diminish. Any suggestion that its pace has been too frenetic will amaze observers of its frequently snail-like progress. Ambassador Tibor Tóth waited until the last moment to offer his Chairman's Text, several months after the Rolling Text had rolled to a virtual halt. It is hard to see the AHG ever achieving a different set of compromises which would command wider consensus. Far better to convert diplomatic time and energy into Preparatory Commission mode, as the original signatories to the Protocol turn to planning the future Organisation for the Prohibition of Biological and Toxin Weapons (OPBW) in PrepCom sessions supported by their Provisional Technical Secretariat in Geneva or The Hague, than to dissipate them on low-gear AHG sessions into an indefinite future.

Drafting a US alternative proposal. Over the years the US contribution to the AHG, as to VEREX before it, has been distinguished principally by its marginality. It is sobering to recall how long it took even the Clinton administration to get its policy stance on the strengthening of the BWC sorted out, and how much patience the AHG had to display while that interagency process wended its tortuous way through Washington. At least the Clinton policy, when it finally arrived, was reasonably supportive of a positive outcome for the Protocol, so long as others did most of the work; and at least President Clinton was willing to make some effort to get advice and consent to ratification in the face of Senate opposition (succeeding with the CWC, failing honourably with the CTBT). Neither factor applies now. On the contrary, the new President is said to see no point in signing anything that the Senate might later reject. While it is tempting to say that the US government should at last shoulder its fair share of the work load, instead of just reacting (or not even reacting) to the initiatives of others, a realistic appreciation of the AHG suggests that to wait for a US alternative to the Protocol would condemn its proceedings to futility.

The best advice to the US is that it should not opt for discontinuing the negotiations, or slowing them down, or drafting an alternative proposal. Instead, in the words of Bill Newton Dunn MEP, introducing the debate which led to the European Parliament's BWC Protocol resolution of June 14, what EU delegations should be saying to the US is: "Come on, sign up, we need this agreement."

The Way Ahead: With the Protocol

Even if the US stands aloof, there is a large core group of BWC states parties favourable to the early conclusion of the Protocol on the basis of the Chairman's Text, with only minor adjustments (which could be made during the 24th AHG session), rather than going back to the Rolling Text. This core group brings together the EU and most other European states west of Russia with such major non-European participants in the AHG as Australia, Brazil, Canada, New Zealand and South Africa: some 40-50 states in all. (It would be counter-productive to count them too closely.) Since they are convinced that the BWC needs this Protocol, let them have the courage of their convictions and sign it.

The worst that might then be said is that they could have agreed it among themselves long ago, with less fuss and more substance to the new regime, and on a basis closer to the mandates unsuccessfully sought for the AHG by the EU in 1994 and South Africa in 1996. But this criticism would be unfair because there was clearly an international public policy case for taking seriously the concerns of other BWC parties and negotiating a Protocol which took account of those concerns in the interests of widening participation. To do less would have risked intentionally creating an 'inner circle' of BWC states parties which accepted extra obligations for themselves alone, while leaving everyone else out of the benefits as well as the costs of this enhanced regime.

By concluding an open Protocol, the original signatories invite as many other BWC states parties as wish to join them. They affirm their commitment to a global bargain, or rather a series of bargains, embodied in the carefully balanced compromise text of the Protocol. No BWC party is excluded, whether it takes them five years or fifty to decide to join.

The Fifth Review Conference

There is one other advantage to concluding the Protocol without delay. It would free up diplomatic attention and energy for a Fifth Review Conference which can look to the future without the uncertainty of a continuing AHG process overshadowing it. In 1996 the Fourth Review Conference was understandably cautious, for fear of cutting across the delicate diplomacy of an AHG about to gear itself up into negotiating mode, and this constrained its final declaration.

The agenda of the Fifth Review Conference will benefit from being cleared of the AHG overlay by prior adoption of the Protocol at a Second Special Conference before November. It could then devote itself to advancing the review process and steering the evolution of the BWC as a treaty regime in the round, more positively than earlier conferences have felt able to do.

Awareness of past failures in BWC compliance, and of pressing challenges from the revolution in genetics and other fast-moving developments in science and technology, should combine to concentrate the minds of the delegates (and of the NGOs who, it is to be hoped, will be allowed as in 1996 to contribute their thinking in a session dedicated to this purpose) on the urgency of reinforcing the treaty regime they have had entrusted to their care.

Since the Ad Hoc Group began work in 1995, attention has understandably been focussed on the emerging Protocol. Yet the Protocol is only one, albeit the most important, of the routes to this reinforcement. A well-crafted final declaration from the Fifth Review Conference can point the way to a balanced evolution of the BWC treaty regime in all its aspects - especially if it mandates interim supportive institutions to carry forward the exhortations of the conference and add coherence to this evolutionary process.

Picking up the threads of 1991 and adapting them to contemporary needs, the conference should mandate a representative Committee of Oversight, supported by scientific and legal advisory panels and a small dedicated secretariat. They would be interim institutions, because their initial mandate would run only to 2006, when the Sixth Review Conference might amend or renew it. By 2011 the rosters of parties to the Convention and its Protocol might be sufficiently similar to enable these institutions to be folded in to an OPBW with the capacity to serve both Protocol and Convention. They would be supportive institutions, because they would support the effective operation of the Convention on behalf of the states parties collectively. They would give the Convention a focal point and continuity of attention in the 5-year intervals between the Fifth, Sixth and (probably) Seventh Review Conferences.

This proposal is emphatically not a fall-back position for the short term, an insurance policy against the risk of there being no Protocol. That would be to misperceive it utterly. On the contrary, the argument for enhancing the role of the review process and investing in interim supportive institutions to give that process continuity is an argument derived from the whole history of the BWC.

The institutional deficit of the Convention is a long-term problem hampering its evolution and damaging its health. It should have been remedied long since. The case for reinforcing the BWC regime in this way was widely discussed in 1990 and, especially, 1991; but it then became obscured by the process which brought states parties together for particular purposes, arguably narrower than the care of the BWC in the round, in VEREX (1992-93), the Special Conference (1994) and the Ad Hoc Group (1995-2001). Now the institutional imperative is re-emerging into view.

Conclusion

There is no danger of governments setting up a costly bureaucracy. BWC history suggests that they are more inclined to skimp on institutions than invest in any. The Fifth Review Conference is a chance for them to demonstrate their awareness of the BWC's fragility and agree on modest structural expenditure to reinforce its treaty regime. Or will this be yet another missed opportunity?

For the Fifth Review Conference in Geneva to put in place a BWC-specific set of interim structures, to support the Convention in the common interest and cover the intervals between reviews until the future OPBW comes of age, would complement adoption of the Protocol by the Second Special Conference in London. First, however, the core of states parties active in the AHG must resolve to conclude the Protocol, if possible with the United States set to become an original signatory, but if need be without.

References

Alva Myrdal, The Game of Disarmament (Manchester University Press, 1977).

Graham S. Pearson & Nicholas A. Sims, 'Article XIII: Review of the Protocol' [on convergence of Protocol and Convention review conferences and institutions, possibly as early as 2011] in Graham S. Pearson & Malcolm R. Dando, eds., The BTWC Protocol: Evaluation Papers, no.11, November 1999 (University of Bradford, Department of Peace Studies).

Barbara Hatch Rosenberg, 'North vs. South: Politics and the Biological Weapons Convention', Politics and the Life Sciences, vol 12 no. 1 (February 1993).

Barbara Hatch Rosenberg, 'US Policy and the BWC Protocol' [based on her June 5, 2001 Congressional testimony], The CBW Conventions Bulletin, no. 52 (June 2001).

Nicholas A. Sims, The Diplomacy of Biological Disarmament: Vicissitudes of a Treaty in Force, 1975-85 (Macmillan/St. Martin's Press, 1988).

Nicholas A. Sims, 'Interim supportive institutions for the Biological Weapons convention: the case for a representative body and advisory panels, pending institutional integration with the eventual Protocol Organization (OPBW)', paper presented at the 14th Workshop of the Pugwash Study Group on the Implementation of the Chemical and Biological Weapons Conventions, Geneva, November 18-19, 2000.

Nicholas A. Sims, 'The Functions of the BWC Review Conferences: Maximizing the Benefits from the Fifth Review Conference', in Graham S. Pearson & Malcolm R. Dando, eds., The BTWC Protocol: Evaluation Papers, no. 2, November 1999 (University of Bradford, Department of Peace Studies).

Nicholas A. Sims is a Senior Lecturer in the Department of International Relations at the London School of Economics and Political Science, University of London.