The American writ

The Fifth Review Conference of the State-Parties to the Biological Weapons Convention not only fails to achieve anything substantial, but comes up with a draft final declaration that includes suggestions made by the U.S., which opposed a legally binding protocol.

THE resumed session of the Fifth Review Conference of the State-Parties to the Biological Weapons Convention (BWC), which was held between November 11 and 15, concluded tamely, without any progress being made towards evolving a legally binding instrument to ensure compliance by the parties. The conference decided to meet annually, until the next Review Conference, which is to be held in 2006. Each of the three meetings will have a different agenda and will be preceded by a preparatory two-week meeting of experts.

While the measures to be discussed at these meetings would amount at best to a political commitment by the State-Parties, the prospects of the negotiations, which were torpedoed by the United States at the suspended Fifth Review Conference last December, leading to a legal treaty, seem bleak. The outcome shows the ability of the U.S. to steer multilateral negotiations if the process is divergent from its objectives. The irony is that the U.S. opposition to the protocol comes in the face of evidence suggesting that the strain of anthrax used in the post-September 11, 2001 attacks came from one of its own biodefence laboratories.

The State-Parties hold Review Conferences every five years to review the status and operation of the convention. At present there are 146 State-Parties to the BWC; 17 more have signed but not ratified.

In the absence of any legally binding mechanism to enforce its provisions, the convention lacked teeth. Since 1994, the Ad Hoc Group (AHG) has been working towards concluding a legally binding protocol. The draft verification protocol is based on the report of a group of inter-governmental experts known as VEREX that was formed in 1991.

Barring a joint statement of dissatisfaction with the outcome by the countries of the Non-Alinged Movement (NAM), there was no evidence of any consolidated effort, a la Kyoto Protocol, on the part of the 94 State-Parties who had assembled in Geneva to resurrect the draft verification protocol after its hostile rejection by the U.S. In July 2001, at the 24th meeting of the AHG, which was mandated by a Special Conference in 1994 to conclude a legally binding protocol through consensus before 2001, the U.S., much to the anger and frustration of the State-Parties including its Western allies, not only rejected the draft protocol, saying that it was non-workable, but also questioned the very basis of a verification protocol and even the relevance of the AHG and the BWC in checking proliferation.

Therefore, the Fifth Review Conference, which was held in November-December 2001 under the presidency of Ambassador Tibor Toth of Hungary, had to be adjourned under controversial circumstances caused by the U.S. stance (Frontline, February 15, 2002). The U.S. even sought to terminate the AHG's mandate to negotiate such a verification protocol. Driven by the Bush administration's penchant for unilateralism, the U.S. reversed the stand taken by earlier governments and sought the use of national means and other United Nations instruments to combat the threat of bioweapons. The grounds for rejecting the protocol were rather dubious: (a) that it was inherently weak to detect non-compliance; (b) that it threatened U.S. national security ("legitimate" bio defence research) and commercial proprietary information as a consequence of intrusive inspections; and, (c) that it undermined multilateral export control regimes on dual-use technologies such as the Australia Group (an informal arrangement among 33 countries to harmonise controls on exports of technologies and goods with chemical and biological weapon potential).

In November 2001, the U.S. put forward an alternative, which comprised mainly of national measures that included making violations of the BWC mandate a criminal offence. The authority to conduct random and surprise inspections would be vested with the U.N. Secretary-General. Other measures that were suggested include restricting access to pathogens and toxins (another way of stressing the need for export controls), strengthening World Health Organisation (WHO) mechanisms to investigate the outbreak of disease and establishing a code of conduct for scientists. These may have merits as measures complementary to a protocol, but they cannot be a substitute for a legally binding instrument of a global treaty. However, aspects of the U.S. proposal were included in the draft final declaration.

But the Conference was suspended without arriving at a final declaration because differences among the State-Parties on key issues of non-compliance and investigations, technology transfer and export controls, the AHG and the follow-up to the conference (following the U.S. position that there be no protocol and that the best forum to address the threat of bioweapons is not the BWC) remained unresolved. The point that the U.S. administration is missing is that without a protocol there is no deterrence at all against violations.

Its position may have been dictated by its desire to pursue an offensive bioweapons development programme under the garb of biodefence research. Non-governmental groups such as the Sunshine Project in the U.S. have revealed significant evidence in this respect.

While these unresolved issues were expected to come up at the resumed session on October 17, president Toth introduced a draft declaration at the First Committee (on Disarmament and International Security) of the 57th Session of the U.N. General Assembly (UNGA), which pointed to some compromise evolving at least with regard to follow-up meetings.

Indeed, Toth's discussions took place in the shadow of the hard stance adopted by the U.S. and its open threats to wreck the Review Conference negotiations if any attempt was made to discuss any issue other than the schedule of the next Review Conference in 2006.

In "talking points on the BWC" issued at the September 2 meeting of the Western Group, the U.S. reiterated its demand for the termination of the AHG and its mandate. It called for a "very short" conference "with the sole purpose and outcome of agreeing to hold a Conference in 2006" and not address any other issue. Indeed, the Assistant Secretary of State for Arms Control, Stephen Rademaker, is reported to have originally proposed an unrealistic 10-minute meeting. According to the "talking points" the U.S. warned that if the conference took up any issue beyond the subject of the 2006 Conference, it would name the countries that it believes are engaged in covert bioweapons programmes. In a speech in Tokyo in August, John Bolton, Under Secretary of State for Arms Control and International Security, reiterated what he said in his address at the November 2001 Review Conference. According to him, Iran, Libya, Syria, and North Korea had offensive bio weapons programmes and, several others, including Cuba, had "at least a limited" biowarfare research and development (R&D) programme. The U.S. threatened to call once again for a formal end to the AHG and its mandate.

On the question of whether follow-up meetings should take place prior to the Sixth Review Conference, the U.S. said that it did not support any meetings within the context of the BWC. However, it appeared to be flexible on holding informal meetings of experts on biological arms control, outside the purview of the BWC. In a bid to save the convention from a total collapse or from being bullied into adopting such a posture by the U.S., other State-Parties had, in the one year between the sessions, adopted a "flexible" attitude towards the agenda for the resumed session.

In April, the United Kingdom issued a "green paper", describing "workable measures" to strengthen the BWC. Interestingly, many of the measures identified were similar to the proposals put forward by the U.S. Statements made by the European Union, Japan and India at the First Committee of the 57th UNGA are reported to have highlighted follow-up as being central to the work of the resumed session. South Africa expressed support for a rapid conclusion of the work of the Review Conference with references to the AHG and the draft protocol deleted from the final decisions. It also supported the establishment of expert groups to deal with specific issues related to the BWC and recommended annual meetings of the State-Parties to assess the work of the experts.

It is based on these softened positions that Toth noted at the First Committee of the 57th UNGA that there was general support for a short session that would focus on the issue of follow-up meetings so that a consensus could be arrived at on the draft decision that he presented. The draft decision was adopted by the First Committee on October 22 without resort to voting. By November, the U.S. policy too had evolved to relent on the issue of follow-up meetings. The final document that included the Decision was presented by Toth on November 11, and was adopted unanimously by the State-Parties on November 14. The conference concluded on November 15 without producing an official final declaration a mark of success for treaty review conferences and produced only Toth's Final Document. Given that the scheduled closing date was November 22, the conference was indeed short.

According to observers, Toth decided against a final declaration because he felt that any such attempt could be counterproductive. He preferred an outcome with "a non-amendable rescue plan" the Final Document incorporating the decision on follow-up rather than issue a declaration. However, the Decision adopted is drawn from the U.S. proposals contained in President Bush's statement on the BWC on November 1, 2001, which goes to show that the U.S. had its way. Indeed, the U.S. is believed to have expressed satisfaction over the fact that the Decision did not refer to the issues of export controls and technology transfer.

Furthermore, since the consensus rule for the follow-up meetings has also been included in the Decision, proposals made or decisions arrived at during the new 2003-05 process would be subject to interpretations and veto, especially that of the U.S. "[The Document] represents a constructive and realistic work programme for the State-Parties to the BWC over the next three years," a State Department release quoted Rademaker.

On the agenda for 2003 will be national measures to implement the prohibitions of the convention and to ensure the security of pathogenic micro-organisms and toxins. In 2004, the focus will be on enhancing international capabilities in responding to, investigating and mitigating the effects of cases of the alleged use of biological weapons or suspicious outbreaks of disease, and strengthening national and international efforts against infectious diseases. The 2005 meeting will address codes of conduct for scientists.

While there was an apparent consensus to this new approach that abandons protocol negotiations at least until 2006, in a statement, the Group of Non-Aligned Movement and Other States expressed its disappointment at the inability to strengthen the BWC. The statement noted that State-Parties were sovereign and that at any time they could together decide upon any further work that may be required. It also noted that in its understanding, discussions over the future course of action would take place during the Review Conference in 2006. Furthermore, the Group believed that the BWC represented a composite whole, and that while it was possible to address related issues separately, it was necessary to deal with all the interlinked elements. However, the Western Group welcomed the "qualitatively different outcome" and stated that the Decision carefully balanced the views of all State-Parties.

According to analysts, since the U.S. did not reiterate its demand for the termination of the AHG and its mandate, technically speaking, the mandate is still in place. Therefore, in principle, the protocol negotiations can be resumed. "That said, no one expects an early resumption of the negotiations or any other attempt to add a legally binding instrument," observed Nicholas A. Sims, a strategic analyst at the London School of Economics. "But something along those lines is still needed and the NAM statement keeps the way open," he added.

Analysts believe that now the BWC will evolve tentatively and with great care in order to keep the U.S. in some kind of multilateral framework related to the BWC. The `new multilateral process' will enable a sharper focus on issues, feels Ambassador Toth who has been re-elected chairman of the meetings in 2003. Article XII of the convention requires it to be reviewed as a whole a point emphasised by NAM and it is to be hoped that a comprehensive review at the 2006 conference would bring the derailed BWC process back on track, leading perhaps to a legally binding Protocol some time in the future.