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Disarmament Diplomacy

Opinion & Analysis

The Case for a BWC Committee of Oversight: Draft Mandate and Commentary

By Nicholas A Sims

Introduction

In Disarmament Diplomacy No. 58 (June 2001), it was recommended that the Fifth Review Conference of the Biological and Toxin Weapons Convention (BWC), due to be held in Geneva from November 19 to December 7 this year, should, among other things, seek to strengthen the Convention by putting an end to the institutional deficit from which it continues to suffer: "a long-term problem hampering its evolution and damaging its health" and one which "should have been remedied long since".¹

Specifically, it was proposed that the conference should mandate a representative Committee of Oversight, supported by scientific and legal advisory panels and a small dedicated secretariat, to bridge the interval between the Fifth and Sixth Review Conferences. These would be interim supportive institutions, designed to look after the health of the BWC treaty regime and to steer its evolution in the interests of its states parties as a whole. They would support the BWC in the interim until a Protocol has been adopted and entered into force, and thereafter until such time as the Organisation for the Prohibition of Bacteriological (Biological) and Toxin Weapons (OPBW) created under the Protocol has developed the capacity to serve the institutional needs of the Convention as well. The OPBW would then come into its own as the single permanent organisation for biological disarmament.

The few months since Disarmament Diplomacy No. 58 have seen at least the temporary collapse of the efforts of the Ad Hoc Group (AHG) to elaborate a Protocol. This setback, the most obvious cause of which was the self-distancing of the United States from the established AHG negotiating process, increases, rather than diminishes, the urgency of seeking ways to strengthen the institutional health and effectiveness of the BWC regime.

Indeed, diplomatic and NGO interest in this proposal for interim supportive institutions is probably greater now than at any time since 1991. Then, the Third Review Conference narrowly failed to create a small 'secretariat unit' to help governments implement their confidence-building measures (CBMs), to process and make available the resulting reports in a systematic way, and thereby to get the BWC's newly enhanced CBM programme off to a good start in 1992.² The idea of a representative committee, meeting intersessionally until the next Review Conference, was also considered but fell at an earlier fence during the 1991 conference³, to the disappointment of all those who had seen in it a key test of governments' commitment: instead, they had failed to remedy the BWC's long-recognised fragility.

Second Chance

Now governments have a second chance. There is no danger that they will squander resources on a large bureaucracy. The danger is, rather, that they will leave the BWC as it is: perilously ill-equipped to cope with whatever problems arise in the long interval between reviews.

All that is required is a modest set of institutions to bridge that long interval, initially to 2006. They would probably need to be renewed until convergence with OPBW can (on the most optimistic assumptions) be achieved in 2011.⁴ At the heart of these institutions would be the Committee of Oversight, a concept first developed in the 1980s.⁵

General Committee to Committee of Oversight

The most acceptable way of putting flesh on this proposal is to extend the life of the General Committee of the Fifth Review Conference, which would either constitute itself the Committee of Oversight⁶ or elect a smaller bureau to perform that function.⁷ This would obviate disagreements over chairpersonship and funding which proved fatal to the intersessional committee proposal in 1991. Chairpersonship would stay with the President of the Fifth Review Conference, and funding would be pro rata as an appendix to the conference.

Because of the regional and other balances carefully observed in the composition of the conference's committee structure, either the larger or the smaller body (the latter perhaps with committee chairs and regional group coordinators but without the other vice-presidents of the conference) would be representative of states parties and could legitimately act on their collective behalf. In essence it would carry forward some of the functions of the conference and follow up its decisions. It would oversee the effective application of the BWC's provisions and the balanced operation of its treaty regime in the round.

Draft Mandate

These and other functions have been given formal expression in a draft mandate, recently published in the CBW Conventions Bulletin of the Harvard Sussex Program on CBW Armament and Arms Limitation⁸, and reproduced below.

This draft mandate takes the form of six new paragraphs which, it is proposed, should be included in the Article XII section of the Final Declaration of the Fifth Review Conference, after the 'standard' paragraphs on future review and what the agenda of the Sixth Review Conference should include. The mandate as drafted offers, within the customary square brackets, the variants of a larger or a smaller membership for the representative body, and also offers a choice of titles as alternatives to the preferred Committee of Oversight.

This article locates the Committee of Oversight proposal in the context of the forthcoming conference, and provides a commentary on some aspects of the draft mandate. It concludes with answers to four questions, answers which may help clear the way to the adoption of the proposal.

Recapturing Momentum

It is generally recognised that the Fifth Review Conference is likely to be overshadowed by the disappointment of the Ad Hoc Group's 24th session (July 23-August 17, 2001), and in particular its failure to agree even a procedural report when it had been expected to conclude seven years' work on the BWC Protocol. Recriminations may be muted out of sympathy for the people of the USA as the principal victims of the terrorist attacks of September 11, but there remains a danger that the US government will be criticised for its July 25 rejection of the Chair's composite draft Protocol, and that it will go on the offensive against its critics, to such an extent that the conference will be deadlocked.

The first goal of the conference must then be a necessarily defensive one: to save itself from being swamped by the backwash of antagonism from the Ad Hoc Group debacle of August 17.

The second goal of the conference must be to preserve the acquis (existing obligations): that is, to agree a Final Declaration which reaffirms the politically-binding commitments and extended understandings of BWC procedures and treaty interpretations on which consensus was recorded in the Final Declarations of 1980, 1986, 1991 and 1996.

The third goal must be to recapture something of the momentum which powered the 'strengthening' process through the 1990s. In 2001 it came to a sudden and demoralising stop, and regardless of where blame may lie it is vitally important to make sure this setback does not do permanent damage to the BWC.

This is where the Committee of Oversight comes in. It is not intended as a substitute for the Protocol, which it long precedes as a proposal; it may even serve as a temporarily unifying focus for opponents and proponents of the Protocol. It should at least stop the BWC going backwards, at this time of disarray, and gradually enable it to pick up momentum again.

The Committee of Oversight in the Final Declaration

It will be all the more necessary to record agreement in the Final Declaration on this draft mandate (or something like it) given the probability that not very much of substance -beyond, let us hope, reaffirmation of the acquis - will have achieved consensus by December 7.

Much of the conference's substantive agenda will remain to be debated and worked out by a representative body as a continuation of the conference in 2002 and later years. That is a central function of the proposed Committee of Oversight.

Not least, the review of relevant scientific and technological developments needs to be an ongoing review by the states parties as a whole, increasingly drawing on the professional expertise and long-term commitment of scientists in civil society to help the global effort. What is needed is a continuous and collective threat assessment informed by the best scientific advice.

Equally, the BWC presents the disarmament community with outstanding legal issues that should not just be addressed, if at all, at 5-year intervals, but should be given the continuity of attention they merit. The Committee of Oversight would provide the framework within which this could begin to happen.

Regime of Research

As I have argued in my most recent book, The Evolution of Biological Disarmament⁹, although one source of weakness for the BWC is its institutional deficit, there is another which equally cries out to be remedied. This is the absence of a regime of research, to complement the regimes of compliance, of development and of permanence which can already be distinguished within the evolving BWC. The need for equilibrium among these sectoral regimes, and for convergence in their evolution, explains the reference to "the balanced operation" of the Convention as well as to "the effective application" of its provisions in paragraph 1(b) of the draft mandate.

The word 'research' appears nowhere in the BWC; but if research remains unconstrained the pressures on those prohibitions which are included in Article I can only intensify.

The United Kingdom in its 1969 and 1970 Draft Conventions wanted a BWC obligation "not to conduct, assist or permit research aimed at production of the kind prohibited" in the Convention¹⁰, but this did not survive the 1971 negotiations. Unfortunately, nothing has been done to fill the gap its removal left, although the problem was noted by early commentators on the finished Convention.¹¹

There is a view that research is not an activity that can, or should, be constrained, because it is inherently incapable of being labelled as intended for one purpose or another. There is another view that research is inseparable from development, in a single seamless R&D process, and is therefore equally proper to be governed by the BWC's general purpose criterion. Somewhere, between those two views, there is a regime of research waiting to be formulated. The British formulation of 1969-70, though doubtless capable of improvement, may well provide a starting point.

In The Evolution of Biological Disarmament, the hope was expressed that the Fifth Review Conference would initiate the monitoring and regulation of BWC-relevant research through recording an extended understanding of the implications of Article I. Now that less substantive content can be expected to achieve consensus for the Final Declaration than could reasonably have been expected when that book was written, there is all the more reason to create a forum in which this urgent matter can be further explored. The forum needs to be a representative group of states parties: the Committee of Oversight, supported by scientific and legal advice and a dedicated secretariat.

National Implementation and CBMs

Under paragraph 1(c) of the draft mandate the Committee and its secretariat could help states parties with their national legislation to 'domesticate' their international obligations by criminalising BW activity. Pooling ideas and sharing experience of implementing Article IV has been encouraged by all the BWC Review Conferences, ever since 1980, but nothing has been done to replace haphazard consultation by systematic cooperation.

Article IV is not the only part of the BWC under which obligations arise which the Committee could help states parties to fulfil cooperatively. Article III not only bans transfer of the BWC's objects of prohibition (agents, toxins, weapons, equipment and means of delivery): it also obliges states parties to do nothing which might "assist, encourage or induce" BW activity. There is no adverb added, like knowingly or intentionally, to qualify this absolute obligation. At what point does carelessness over export controls, say, become so reckless as to amount to assistance in breach of Article III?

Since 1991, CBM 'E' has brought together the national implementation of these two Articles by committing states parties to provide the details of three kinds of legislation: to 'domesticate' the international prohibitions (as done most directly in laws like the UK's Biological Weapons Act 1974); to regulate imports; and to regulate exports.

All the CBMs are politically-binding commitments, but they have been patchily implemented. Very few states parties have consistently fulfilled their requirements, even though a simplified reporting procedure for the CBM programme has been in operation since April 1992.

The small 'secretariat unit' which was very nearly agreed in 1991 would have helped get the newly enhanced CBM programme off to a good start. Ten years later, a Committee of Oversight secretariat should have the CBM programme prominently included within its wider remit of assisting states parties in fulfilling their obligations under the Convention and their commitments under Final Declarations.

Towards Universality

Under paragraph 1(d) the Committee could organise demarches on behalf of the Fifth Review Conference to promote the universality of the BWC, aiming steadily to improve on the present 75% take-up. In the past, efforts have been spasmodic and there has been little coordination. Achievement has fallen far short of aspiration: despite all the appeals in successive Final Declarations there are still 50 non-parties.

Some will be resistant on security grounds, especially in the Middle East. But for many others the path to ratification (18 signatures are still outstanding, un-ratified, from 1972-73) or accession could be eased by a helpful, and quietly persistent, secretariat. It would take its political authorisation from the Fifth Review Conference, under the guidance of the Committee of Oversight. The same goes for follow-up to the customary appeal to those states parties which have not yet withdrawn their Geneva Protocol reservations, reserving a 'right' of retaliatory use of BW, to do so.

These are just two examples of the function expressed most generally at paragraph 1(a): to follow up the Final Declaration and conference decisions. Too many appeals and decisions of 1996 and earlier have been left hanging in the air, for want of any organised follow-up.¹²

Focal Point

Under paragraph 1(e) the secretariat would be a focal point for intergovernmental and other organisations to deal with, in relating to the BWC's states parties as a collectivity; but it would act always under the authority of those states parties through their representative Committee of Oversight. Governments could be reassured that it would not be a freestanding institution, still less a runaway bureaucracy. It is extraordinary that there is still no BWC focal point for closely related organisations like the Organisation for the Prohibition of Chemical Weapons (OPCW) and World Health Organisation (WHO) to communicate with, let alone NGOs and the media.

In dealings with the UN, some functions may rightly remain with the Depositary Governments, but for most purposes a dedicated BWC secretariat makes better sense. Relations between the BWC and other parts of the UN Secretariat would become particularly important if the Secretary-General were to investigate allegations of BW use under his long-established authority from the Security Council and General Assembly to do so.¹³

Does the Review Conference have the Right To Empower a Representative Body?

Governments grow understandably sensitive if they suspect treaty amendment by the back door. Review conferences must therefore never let review run into revision. However, all that the conference is being asked to do here is to extend the life of its General Committee (or of a subset of its membership if the bureau variant is preferred) and to define its mandate as a Committee of Oversight to bridge the interval to 2006. The other supportive institutions - two advisory panels and a small secretariat - are subordinate to the Committee. All are interim institutions: none will continue after 2006 unless the Sixth Review Conference extends this mandate, amended as necessary. That very extension is to be the subject of a formal recommendation within the report to the Sixth Review Conference, additional to the interim reports requested in paragraph 5 (which, in themselves, would do something to give the BWC community a greater sense of identity and continuity).

A useful precedent from 1986 is the mandate to the Ad Hoc Meeting of Scientific and Technical Experts to finalise CBM modalities (March 31-April 15, 1987). Another, from 1991, is the mandate to the VEREX Ad Hoc Group (four sessions over 1992-93). The first function of the Committee, to follow up the Final Declaration and decisions of the conference, is comparable to those precedents likewise mandated by review conferences, although paragraph 1(a) and (b) of its draft mandate would give it a deliberately wider ambit.

Should the Committee of Oversight Have Any Role in Compliance Diplomacy?

It will evidently be important to keep the Article V contingency mechanism of the Formal Consultative Meeting intact, that mechanism having been painstakingly built up through the first four reviews and finally put to use, by Cuba after its Thrips palmi infestation, in 1997.¹⁴ The same goes for the Article VI complaint procedure invoking the Security Council, which still awaits its first complainant.

However, paragraph 4 of the draft mandate envisages the Committee of Oversight playing a role in compliance diplomacy on request, provided no state party objects. This could hold out a potentially attractive diplomatic option, intermediate between the simple bilateral demarche and the full multilateral procedure leading to a Formal Consultative Meeting, which might appeal to states parties wanting to resolve ambiguities in a political forum with scientific and legal advisory panels available to lend their expertise to the process. Compliance diplomacy can in some circumstances be reasonably amicable, rather than adversarial, and the Committee of Oversight could help keep it so.

Would the Committee of Oversight Get in the Way of the Depositaries or the UN?

The Depositary Governments have always construed their role narrowly, doing nothing beyond what the Convention legally requires or what a Final Declaration has laid upon them. When acting as Depositaries (rather than as individual states parties), they have acted conscientiously within this strictly defined role and have never seen themselves - or, for that matter, been expected to act - as an inner directorate or executive committee for the BWC. Provided the mandate protects their position under Article XIV (as this draft does) they should have no problem with it. They have already had themselves added to the General Committee in advance of the Fifth Review Conference, at the April 2001 Preparatory Committee (PrepCom)¹⁵, so they would be able equally to join in its post-conference exercise of oversight.

The UN Secretary-General is included in paragraph 1(g) because the small secretariat might well be a specified unit within the UN's Department for Disarmament Affairs (DDA). This was the pattern envisaged in 1991. It raised no difficulty for the UN officials in the secretariat of the Third Review Conference, who indeed volunteered a useful precedent from the practice of the UN Centre for Human Rights (now the Office of the High Commissioner for Human Rights) regarding the secretariat serving the Convention Against Torture and its oversight committee.

However meticulously the Depositaries and the UN perform their respective functions, there will remain a large space for interim supportive institutions like the Committee of Oversight to fill, in nurturing the BWC and helping steer it in a constructive direction.

Could the Committee of Oversight be a Substitute for an OPBW PrepCom?

This is a difficult question to answer. Formally the two are very different. A PrepCom would be preoccupied with building the OPBW ready for its emergence upon entry into force of the Protocol. The Committee of Oversight is essentially a different kind of body, representative not plenary, and confined to bridging the interval between reviews rather than building a new organisation.

It is, however, possible to see a certain functional resemblance in so far as the PrepCom might have been expected to have a role in coordination of the CBM programme. That function of CBM coordination is an important part of the mandate envisaged for the Committee of Oversight. More broadly, paragraph 1(b) would enable it to exercise a general oversight of the BWC regime in all its aspects, something which becomes all the more necessary in the absence of an OPBW PrepCom.

With no PrepCom, and no review conference until 2006, the Committee of Oversight would channel the energies of the BWC's diplomatic community, which would otherwise be diffuse and inchoate. After all, it would inevitably involve many of the same people who could in other circumstances have expected to be delegates to the PrepCom through 2002 and beyond. It would be the vital, and sole, representative forum carrying forward the evolution of the BWC overall.

Conclusion

Whatever else the Fifth Review Conference may find itself able or unable to do, it should not fail at least to grasp this second chance to endow the BWC with a Committee of Oversight, supported by advisory panels and a small dedicated secretariat, as interim supportive institutions in the service of all. This draft mandate offers a practical way forward.

Notes and References

1. Nicholas A. Sims, 'Four decades of missed opportunities to strengthen the BWC: 2001 too?', Disarmament Diplomacy No 58 (June 2001) pp. 15-21, at p. 20.

2. Barbara Hatch Rosenberg, 'North vs. South: politics and the Biological Weapons Convention', Politics and the Life Sciences, Vol. 12 No. 1 (February 1993), pp. 69-77, at p. 71.

3. Jozef Goldblat & Thomas Bernauer, 'Towards a more effective ban on biological weapons', Bulletin of Peace Proposals, Vol. 23 No. 1 (March 1992), pp. 35-41, at p. 39.

4. Graham S. Pearson & Nicholas A. Sims, 'Article XIII: Review of the Protocol', Evaluation Paper No. 11 (November 1999) in Graham S. Pearson & Malcolm R. Dando (eds), BTWC Protocol: Evaluation Papers (University of Bradford Department of Peace Studies, 1999).

5. Nicholas A. Sims, The Diplomacy of Biological Disarmament: Vicissitudes of a Treaty in Force, 1975-85 (Macmillan/St Martin's Press, 1988), pp. 298-306.

6. Charles C. Flowerree, 'On tending arms control agreements', The Washington Quarterly, Vol. 13 No. 1 (Winter 1990), pp. 199-214, at p. 210. Ambassador Flowerree had led the US delegation at the BWC First Review Conference in March 1980.

7. Charles C. Flowerree, 'Possible implications of the anthrax outbreak in Sverdlovsk on future verification of the Biological Weapons Convention: a US perspective', in S.J. Lundin (ed), Views on Possible Verification Measures for the Biological Weapons Convention (OUP/SIPRI, 1991), pp. 108-114, at p. 113.

8. Nicholas A. Sims, 'Nurturing the BWC: agenda for the Fifth Review Conference and beyond', CBW Conventions Bulletin No. 53 (September 2001), pp. 3-5.

9. Nicholas A Sims, The Evolution of Biological Disarmament (OUP/SIPRI, 2001) pp. 179-182.

10. ENDC/255 (10 July 1969); ENDC/255/Rev.1 (26 August 1969); CCD/255/Rev.2 (8 August 1970).

11. Notably Frank Barnaby, then Director of SIPRI; Nicholas A. Sims, Approaches to Disarmament, rev.edn. (Quaker Peace & Service, 1979), p.65.

12 Nicholas A. Sims, 'The BTWC in historical perspective: from review and strengthening processes to an integrated treaty regime', Disarmament Forum (UNIDIR), No. 4 (Fall 2000), pp. 19-26, at p. 22.

13. Security Council Resolution 620 (1988) and General Assembly guidelines in UN Doc A/44/561 (1989) were cited in the Article VI section of the Final Declaration of the Fourth Review Conference (BWC/CONF.IV/9, p 21).

14. The Evolution of Biological Disarmament (note 9 above), pp. 31-52.

15. Graham S. Pearson, 'Strengthening the Biological and Toxin Weapons Convention: Progress in Geneva, Quarterly Review no 15', CBW Conventions Bulletin No. 52 (June 2001) pp 15-30, at p 18.

Nicholas A Sims is a Senior Lecturer in International Relations at the London School of Economics and Political Science, University of London. His latest book is 'The Evolution of Biological Disarmament' (OUP/SIPRI, 2001).

© 2001 The Acronym Institute.