Disarmament Diplomacy
Issue No. 48, July 2000
Protocol Ad Hoc Group Enters Deeper Into Consultations
By Jenni Rissanen
Introduction
The Ad Hoc Group (AHG) of States Parties to the Biological and
Toxin Weapons Convention (BWC) gathered on July 10 in Geneva to
hold its 20th session. The four-week negotiations showed
that the three-month break since the previous session in March had
done little to resolve some of the most profound differences of
view. Most importantly however, this session facilitated a change
in the AHG's methods of work, which many view as essential if the
AHG is to reach its goal of concluding the Protocol by the Fifth
Review Conference, scheduled for 2001.
The text now being worked on is still heavily bracketed with
contested or alternative language on some of the key issues, and
there is a realization that the issues need to be tackled in a more
comprehensive and crosscutting way if brackets are to be
eliminated. While the AHG continued with bracket-by-bracket
negotiations in the conference room, the Chair, Ambassador Tibor
Tóth of Hungary, conducted confidential consultations with
numerous delegations next door, trying to steer the delegations'
thoughts towards the end product. In addition, several diplomats
acting as 'Friends of the Chair' (FOC) are also understood to have
pursued an increased level of consultations with delegations in
order to find resolution on the outstanding issues.
Background
The mandate to negotiate a Protocol on verification came from
the 1994 Special Conference of States Parties to the BWC. The
revelation that some states parties had been discovered to have
developed covert biological weapons programmes added to the
recognition that the effectiveness and implementation of the BWC
needed to be strengthened. A group of governmental experts (VEREX)
met from 1992-1993 to consider measures to verify that states
parties complied with the BWC and negotiations on a Protocol began
in earnest in January 1995 in the AHG format. The group has now met
for a total of fifty-four weeks.
The Fourth Review Conference of the BWC in 1996 mandated the AHG
to complete the negotiations for the Protocol as soon as possible,
and certainly before the Fifth Review Conference. The depositaries
of the BWC, Russia, United Kingdom and the United States, proposed
at the 20th session that the Review Conference take
place in November-December of 2001, preceded by a Preparatory
Commission in April.
The Intensification of Consultations
By July 1997, the AHG had developed a rolling text, which it has
since been negotiating on. The rate of progress in removing
brackets has varied and earlier this year seemed to slow down, as
negotiations ran into difficult political differences. Some
delegations, such as Australia, Brazil and the European Union (EU),
called for new working methods in order to make the final stage of
the negotiations more efficient. Others, such as India and Iran,
have underlined the rolling text as the basis of the negotiations,
and seem to satisfied with the slower, bracket-by-bracket approach.
This has inevitably led to criticism in the corridors from
delegations who believe that they are deliberately trying to
slowdown the process.
The different perceptions about the way in which the AHG should
conduct its work have now centred on the question of when and how a
Chair's text - i.e. a text without brackets indicating the Chair's
view of what the final product might look like - should be
produced. The EU is a strong advocate of such a text but in some
quarters the idea has been received with discomfort and resistance.
It is perhaps against this background that the changes in the AHG
working methods should be seen. The Chair's bilateral consultations
with delegations can be seen as charting a course between those who
want to speed up the process through a Chair's text and those who
prefer the current rolling text negotiation approach. There were
also many delegations which felt the process should be fluid enough
to respond to needs as they arise, without taking sides between
introducing a Chair's text at this point or continuing with the
rolling text.
At the opening plenary on July 10, Tóth addressed the
perceived slowdown and outlined some changes in working methods.
While acknowledging that some degree of slowdown was a natural part
of the process, as aeroplanes that are "just about to land, need to
slow down to find the right speed to land", Tóth noted that
in the last session the pace had slackened in terms of the
'cleaning' of the brackets, the volume of work, the number of
working papers introduced, national interventions and requests for
extra time by the Friends of the Chair. He also expressed concerned
about the "not overwhelming" level of political interest in the
negotiations when compared with other disarmament negotiations.
Despite the fact that his consultations in the intersessional
period had shown support for concluding the process within the
timetable of the mandate, there seemed to be a broader lack of
political prioritisation of the issue: where delegations on the
floor were "more aware of the complications", the higher
governmental levels seemed more "relaxed". He wondered aloud
whether reality lay in the micro or the macro cosmos, and warned
that a successful landing at finalised Protocol was not automatic,
but would require sustained interest.1
At the end of the March session Tóth had asked the
Friends of the Chair to divide those issues still outstanding into
three categories of difficulty. In July he announced that during
this session he would undertake bilateral consultations on the most
difficult issues, "aimed at a conceptual exploration of possible
future solutions". He focused on investigations, compliance
measures and objective criteria, transfers, technical cooperation,
legal issues and issues related to the organization.2 It
is also understood that the Chair facilitated some open-ended
consultations held between smaller groups comprised of delegations
with a particular interest in certain issues. Having sought states
parties' views in this way during the session, the Chair presented
a summary of those consultations to the AHG on the last day. Due to
the sensitive nature of those consultations and the lack of direct
information at this juncture, the Acronym Institute will provide
fuller information at a later stage.
There seemed to be general support for The Chair's use of
bilateral consultations. At the beginning of the session, Iran, for
example, accepted that they could "increase the efficiency of the
negotiations and the probability of reaching consensus", but
strongly argued for them to be conducted with "maximum
transparency". Iran underlined that the rolling text must continue
to be the basis for the negotiations, cautioning that "any other
text will put the existing cooperative atmosphere in
jeopardy."3 Towards the end of the session, Australia
spoke for many when it said that the informal consultations "had
born fruit" and had showed that they could help the AHG to attain
results. Australia hoped they would be continued in the
future.4
Export Controls
Eleven working papers were put forward at the 20th
session. Two of them, by Britain and Iran, addressed the question
of export controls. Debate on export controls was reportedly
polarised, with positions remaining unchanged and no progress made.
This may be due to tactical preparation for the "endgame" or it
could indicate that the issue could become the ultimate stumbling
block for the negotiations as a whole.
In an attempt to tackle what is perhaps the most controversial
issue regarding export controls, Britain submitted a working paper
entitled "Fulfilling the Objectives of the [BWC]: Resolving the
Issue of Trade and Exchange of Technology".5 The paper
discusses the question of exchanging technology following the
adoption of a verification Protocol, rejecting the view that
"national controls on exports between States Parties to the
Protocol should immediately and automatically be relaxed, or even
eliminated in order to promote technology exchange and
co-operation." Instead, Britain argues that export controls and the
Protocol measures are mutually complementary, both aimed at
strengthening the Convention. Referring to Iraq, Britain recalled
that in that case the international community used both
verification and export control measures to prevent the
reactivation of the programme by the Iraqi government.
Arguing that export controls are a "sovereign responsibility of
the exporting State, and cannot be surrendered to an international
body", Britain (in an obvious reference to the Australia Group)
supported the right of states to adopt common approaches on
exports. Britain underlined that export licensing systems "have
not, do not, and will not mean automatic veto of high technology".
As a way of alleviating concerns about genuine transfer problems,
Britain proposes they be addressed in bilateral consultations
provided by the Protocol. As another alternative, it proposes that
the Protocol enable the future BTWC organisation to provide
assistance in implementing Article III (transfers) as a means of
addressing possible economic concerns.
Iran, one of the strongest advocates of a Protocol offering
strong provisions for technical cooperation, said in the opening
plenary that developing countries were "not in the position to
accept additional regulatory obligations, administrative and
legislative burdens" unless they were assured that there would be a
balance in the Protocol between the promotional and regulatory
pillars.6 Iran then tabled a proposal on "Settlement of
Disputes on Transfer Denial", a working paper that is likely to
face fierce resistance in the future. It proposes the establishment
of a settlement process under the Executive Council to address
transfer denials. Iran seeks a system where, in the absence of
agreement between the parties, the mechanism can "secure the
withdrawal of the measures concerned" if the denial is found to be
inconsistent with the Convention and the Protocol. The proposal
would entail granting decision-making powers on transfers to a
dispute settlement panel made up of governmental and
non-governmental individuals.7 The proposition is widely
considered unrealistic, and is not likely to gain support of
countries in the Australia Group.
Pharmaceutical Industry Concerns and Visits
Pharmaceutical industries have shown great interest throughout
the negotiations in the kind of compliance measures being
developed. This has been the case in particular in the United
States where the Pharmaceutical Research and Manufacturers of
America (PhRMA) has lobbied the US government heavily and been able
to influence the US positions in this respect. Among the measures -
consisting of declarations of activities and/or facilities, and
visits and investigations - the question of
randomly-selected/transparency visits is of particular interest due
to concerns about the security of intellectual property and the
confidentiality of business information.
The United States delegation has opposed the concept of random
visits, and in the 19th session put forth an informal
policy paper explaining its position.8 It has received
little support for its position, even in the Western Group where
the EU considers visits as essential for an effective
Protocol,9 and is becoming increasingly isolated.
Russia, formerly only supportive of voluntary visits, reportedly
announced at this session that it could go along with the mandatory
visits, but only to high containment BL-4 facilities.
Meanwhile, outside the negotiations, the European, US and
Japanese pharmaceutical industries joined forces to present their
views in a joint position paper distributed to the
AHG.10 The paper calls for the recognition of
intellectual property and confidential business information rights,
particularly in the context of declarations and on-site activities.
It argues for simple declarations in order not to burden the
industry and objects to any routine on-site activities. Some type
of voluntary and site-controlled "familiarisation" visits are
declared to be acceptable. The use of managed or restricted access
in the case of challenge inspections - a system designed to reveal
only the necessary information - is also advocated. What effect
this "unification" by industries from three regions will have on
the negotiations, if any, is yet to be seen.
In another development, PhRMA and the Federation of American
Scientists (FAS) circulated to delegations a paper, first issued in
May, offering suggestions on how best to alleviate concerns over
the loss of confidentiality and compatibility with the US
constitution. The paper advocates the use of managed access in all
on-site activities, with the rights and limits clearly spelled out
in the Protocol, and the granting of decision-making power on
managed access to site managers. Furthermore, it suggests that the
owners of facilities participate in the preparation and review of
the US declarations. In an effort to highlight the need to protect
sensitive information, it also recommends that the Protocol include
a definition of confidential information, and for all participants
who take part in on-site activities to sign a confidentiality
agreement.11
Conclusion
The AHG now has ahead of it another break of over three months
before convening on November 20 for its 21st session.
The Chair has said he will start informal consultations a week
before the session begins. While this session demonstrated that
conclusion of the negotiations is likely to be pushed closer to the
Review Conference, it is unclear at this point what effect the
November session will have on the process, in particular
considering their conjunction with the presidential and
Congressional elections which may act to freeze the US negotiating
position.
In general terms, progress will depend on the political will and
commitment to engage in genuine and constructive dialogue on the
key issues such as visits and export controls, as well as some
countries readiness to move towards a Chair's text. But it is clear
that the negotiations are now increasingly expected to take place
informally, in a focused fashion and among interested delegations,
in the hope that this will yield results faster and more
efficiently.
AHG Session Dates for 2000
Eighteenth session, January 17 - February 4;
Nineteenth session, March 13 - 31;
Twentieth session, July 10 - August 4;
Twenty-first session, November 20 - December 8.
Notes and References
1. Tibor Tóth, Chair of the BWC AHG, plenary on July 10,
2000.
2. BWC AHG/AD HOC GROUP/L.97, August 4, 2000.
3. Ali Asghar Soltanieh, Ambassador or Iran, BWC AHG plenary,
July 10, 2000.
4. Leslie Luck, Ambassador of Australia, BWC AHG plenary, August
4, 2000.
5. BWC/AD HOC GROUP/WP.424, July 20, 2000.
6. Ali Asghar Soltanieh, Ambassador or Iran, BWC AHG plenary,
July 10, 2000.
7. BWC/AD HOC GROUP/WP.426, August 2, 2000.
8. For more information on this, see "Protocol Negotiations
Continue Through 25th Anniversary of the Convention's
Entry into Force" in Disarmament
Diplomacy no.45.
9. European Union Common Position of May 17, 1999,
1999/346.CSFP.
10. "Compliance Protocol to the Biological Weapons Convention: A
Joint Position of European, United States and Japanese
Industry."
11. "Proposals for US Implementing Legislation for the
Biological Weapons Convention Protocol" by FAS and PhRMA, May
2000.
Jenni Rissanen is the Acronym Institute's Geneva
Analyst.
© 2000 The Acronym Institute.
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