Verification woes

The Biological Weapons Convention is left in disarray after the U.S. volte-face on the verification protocol at the Review Conference.

THE Biological Weapons Conven- tion, which seeks to ban an entire class of weapons of mass destruction by prohibiting development, production and stockpiling of biological weapons and toxins, is virtually in a state of disarray since the Fifth Review Conference of the States Parties to the BMC concluded in Geneva on December 7.

Barely an hour before the conclusion of the three-week-long Conference, the United States delegation tabled a paper demanding the termination of the mandate of the Ad Hoc Group (AHG) to negotiate a legally binding Verification Protocol for ensuring compliance with the BWC.

The AHG, which had been constituted at the 1994 Special Conference, had set itself a target date of 2001 for the conclusion of the Protocol. Instead, the U.S. proposed annual meetings of States Parties and expert groups, which had been previously seen as complementary to the negotiations under the AHG, merely to examine issues and provide annual reports. The U.S. proposal was rejected by the European Union (E.U.), Japan, Canada, Russia, China, Iran and India.

Though the BMC came into force in 1975, and 144 countries have ratified it so far, it lacks instruments of monitoring and verification of compliance. But any forward movement towards realising its objectives was rendered impossible by the U.S.' sudden reversal of stance even as the world faces the reality of the threat of bioterrorism. Ironically, the U.S. was the first target of bioterrorist attacks.

The U.S. move forced the 144 States Parties to suspend the Review Conference, which normally meets once in five years, and reconvene in November. Initially, the U.S. did not agree even to the resumption of the session in November but was prevailed upon by other Western Group countries. Unprecedented perhaps in the history of multilateral treaty negotiations, the Conference failed to adopt a final declaration. "It looked impossible to overcome the difficulties that we were facing," said Conference President Tibor Toth. "There was a decision about practically adjourning instead of bringing the Conference to an unsuccessful end," he said.

Only a day earlier, the leader of the U.S. delegation, John R. Bolton, Under Secretary of State for Arms Control and International Security, had told the Conference that the U.S. would allow the continuation of negotiations for a new enforcement mechanism for the Convention. Hence, the reversal came as a rude shock to the delegates, and the representatives of the E.U. in particular felt deceived by the volte-face. "In decades of multilateral negotiations, we have never experienced this kind of insulting behaviour," one E.U. representative was quoted as saying. In fact, E.U. representatives did not attend a meeting of the Western Group held soon after the adjournment.

The U.S. has delivered a double blow to the BWC with this stunner, having successfully derailed the AHS negotiations in July last year. After the Kyoto Protocol and the Anti-Ballistic Missile (ABM) Treaty, the attitude towards the BWC provides yet more evidence of the Bush Administration's increasing allergy to multilateral treaties and its penchant for unilateral action. In keeping with this, the U.S. put forth a set of proposals at the Review Conference, which are basically national measures to be introduced by individual governments and cannot be legally binding multilateral instruments.

In July last year, at the 24th session of the AHG, the U.S. had rejected not just the Draft Protocol (AHG Chairman Tibor Toth's 'Composite Text') but the concept of a Verification Protocol itself. After seven years of negotiations, the U.S. move had brought back to square one the entire process of drawing up a verification and compliance mechanism. The U.S. had been criticised even by its Western allies for its unreasonable stand, especially after it had been party to all the decisions and exercises towards evolving a verification framework. More pertinently, the Verification Protocol had been considerably diluted to accommodate U.S. concerns on legitimate biodefence activities and disclosure of proprietary information of the biotechnology industry.

As the Cuban representative at the Conference put it, "The U.S. had forced us to move ten years back... completely inconsistent with the U.S.' strong previous demands to ease several of the Protocol's clauses, only to reject it after invoking, among other reasons, its weaknesses." The AHG negotiations have remained suspended since July without completing the mandated task of submitting a Verification Protocol to the Review Conference for consideration by the States Parties.

According to an analysis of the U.S. delegation's comments by the Federation of American Scientists (FAS), until July 25, when it delivered the first blow to the negotiations, the U.S. had not expressed difficulty with the overall protocol approach. In fact, in June-July and September-October 1998, it had subscribed to the Draft Protocol elements including declarations, visits, investigations and an implementing organisation. In January-February 2000, the U.S. had proposed random visits, implying thereby its acceptance of the Verification Protocol concept. In November-December 2000 it had expressed the wish to have a protocol and applauded the AHG for the work it had done until then.

It had become clear after the U.S.' rejection of the Protocol that any multilaterally negotiated, legally binding instrument was unlikely. Moreover, the U.S. was determined to derail any negotiations on a verification regime. In fact, officials in Washington had stated in July itself that the U.S. would not walk out of the negotiations in order to prevent agreement on a protocol just as had happened during the Kyoto Protocol negotiations. But with heightened concerns over the threat of bioweapons following the recent anthrax attacks, it was hoped that at least a politically binding declaration could be forged at the Fifth Review Conference. Despite many contentious issues concerning the content and language of the declaration, Tibor Toth was hopeful of a consensual document. But that was not to be. While its statement on the AHG had become highly contentious, the U.S. also insisted that the final declaration include a strong statement on non-compliance by certain States Parties. This was unacceptable to many States Parties because it would have implied, without evidence, that the BMC was ineffective.

In his comments to the media after the adjournment, Toth said: "We were quite close to finishing our work, both in terms of the volume of the elements which were consolidated and in terms of understandings which we reached. However, there seemed to be a serious absence of understanding concerning the issue of the AHG where the differences between positions seemed irreconcilable... The draft declaration was 95 per cent ready. In my judgment, the draft final declaration can, in the meantime, be an orientation for delegations to undertake... national efforts and even to start implementation of some of these ideas. The consolidated elements will not all fade away. This is a kind of damage control, if you wish."

Until Bolton delivered the bolt from the blue, the mandate given to the AHG - "to strengthen the Convention through a legally binding instrument" - had not been questioned. The Convention President and the States Parties in general were of the view that the mandate agreed to in 1994 remained valid - "like a sleeping beauty", in the words of the President - even after the target date of November-December 2001 unless there was a specific withdrawal of the mandate by a conference of parties to the Convention. However, the sudden U.S. rejection of the AHG and the mandate itself amounts to a collapse of the consensus that had established the AHG.

According to analysts, since a formal declaration by the parties, withdrawing the original 1994 decision, has not been made, technically the AHG and the mandate are still valid. They are, however, in a "comatose" state and can be resurrected only at the Conference of Parties in November. In principle, the AHG could have met after the Review Conference if the Chair had scheduled a Special Conference to take up the unfinished task after the July debacle, but that did not happen. Perhaps no one had anticipated that the Review Conference would also be sabotaged. There is little hope for the revival of the AHG and the mandate at the November meeting because the Conference has to act on the U.S. demand to scrap them. In any case, the agenda for the November conference, according to the official press release, is the continuation of the work on a final declaration. The declaration might take note of the U.S. proposal to terminate the AHG and the mandate. A decision to terminate the AHG will also mark the death of the Draft Protocol.

WHY is the U.S. taking such an antagonistic stand? Soon after it came to power, the Bush Administration, with its open antipathy to multilateral treaties, undertook a policy review directed by Donald Mahley, Bolton's predecessor at the Geneva negotiations and a known opponent of the Protocol. The review apparently found 38 substantive problems with the Draft Protocol and recommended that the U.S. oppose it. The details of the critique have not been made public. Indeed, according to Congressman Henry Waxman, a Democrat, a congressional hearing in July had asked the State Department to submit its evaluation, which led to the rejection of the Draft Protocol. But the subcommittee had not received it until November.

Three basic reasons have been cited for rejecting the Draft Protocol: it is too weak; it would threaten national security and commercial proprietary information; and, it would threaten the dual-use export control regime of the Australia Group (an informal arrangement among countries that tries to harmonise policies on export of items with chemical or biological weapons potential).

The U.S. Administration argued that the Protocol could not be relied upon to detect with certainty violations of the BWC. But the Protocol was not meant to verify compliance in that sense. Mahley himself acknowledged this in a congressional testimony in September 2000. "The U.S. has never judged that the Protocol would produce what is to the U.S. an effectively verifiable BWC. What we have sought in the negotiations is greater transparency. This could, in our view, complicate the efforts of countries to cheat on their BWC obligations."

As Barbara Rosenberg, head of the FAS' Working Group on Biological Weapons, pointed out, it was on the U.S.' insistence that declaration of biodefence facilities and production facilities was limited; now U.S. officials complain that the Draft Protocol does not cover the relevant facilities. The U.S. is also responsible for the provisions that prohibit sampling during visits and those that substitute host-state control of access for more stringent rules of "managed access". The U.S. also watered down the Protocol's stated purpose of randomly chosen transparency visits from "confirming the accuracy of declaration" to "increasing confidence in the consistency of declaration". "After the easing of verification measures, to say that the Protocol is weak is both illogical and disingenuous," said Rosenberg.

The argument that the Draft Protocol measures do not protect proprietary information is also not correct. It complies with the wishes of the U.S. bioindustry, which is concerned about protecting proprietary microbial strains. It has more safeguards for confidential information than the Chemical Weapons Convention (CWC) and is less intrusive. Indeed, a U.S. Government Accounting Office (GAO) report of September 2000 on CWC Inspections noted that "the U.S. industry was generally able to protect proprietary information in part because of the Convention and the U.S. law".

Furthermore, the BMC Draft Protocol covered many of the facilities already covered by the CWC, to which the U.S. is a party since 1997. In addition, the Draft Protocol exempts many facilities as a consequence of U.S. insis-tence. "Even the stronger Protocol measures originally considered were far less intrusive than those that the U.S. bioindustry routinely undergoes, conducted by the Food and Drug Administration (FDA) and other federal agencies," said Rosenberg. U.S. officials seem to have encouraged criticism of the Draft Protocol by the industry and used it as a cover to justify the Administration's stand on the Protocol.

The U.S. objection to export controls is also not valid because the Protocol contains only guidelines, with each party having full discretion over implementing them. Thus the Bush Administration's reasons for rejection are inconsistent and invalid. One possible undisclosed reason could be the U.S.' own secret biological weapons (BW) research programme, whose elements would seem to violate the provisions of the BWC. On September 5, 2001, The New York Times ran a story on the development of a BW agent production facility at Nevada and a model BW bomb as well as plans to produce a new strain of anthrax. The BWC prohibits development, production and possession of biological agents and weapons for offensive purposes but permits defensive activity.

The U.S. Defence Department maintained that the work was of a legitimate nature and the sort permitted under the BWC. If so, why was it kept secret? Under the Protocol a party would be required to declare such facilities and the U.S. programme would militate against BWC provisions. Mary Elizabeth Hoinkes, former general counsel of the Arms Control Disarmament Agency (ACDA), disagreed with the Defence Department's interpretation and said their claim was "a gross misrepresentation that risked doing serious violence to the Convention".

A European official has been quoted in an October report of Arms Control Today as saying: "If the U.S. administration had seen such work under way in other countries, then it would be the first to point the finger... this makes gray areas grayer still between offence and defence and that does not help." Surprisingly, this issue did not come up at the Review Conference even as the U.S. accused several countries, without evidence, of pursuing offensive BW programmes. They included Iran, Iraq, the Democratic People's Republic of Korea, Libya, and Syria and Sudan, both of whom are not signatories to the BWC. "Maybe," as an analyst commented, "it was intended to continue having the U.S. on board and not put the negotiations in jeopardy."

Indeed, Bolton had gone on the offensive at the Review Conference apparently in an attempt to pre-empt criticism of its rejection of the Protocol. The Conference opened on an acrimonious note, with Bolton accusing countries by name - notwithstanding the diplomatic impropriety involved - of operating clandestine BW programmes. "Arms control approaches of the past will not resolve current problems," he said, adding that the Draft Protocol would have given proliferators a "stamp of approval". Iran, Iraq and Libya, exercising their right of reply, rejected the U.S.' accusations.

The accusations of non-compliance and the insistence that these instances be included in the final declaration were perhaps aimed at exposing the weakness of the Convention and thus clearing the ground for a U.N. Security Council initiative, besides leaving room for measures such as sanctions or even a veto by the five permanent members of the Security Council.

THE new package of proposals put forward by Bolton at the Review Conference consisted of the following:

1. National measures such as (a) criminal extradition arrangements with respect to BW offences and legislation making activities outlawed by the BWC a criminal offence; (b) adoption and implementation of regulations restricting access to dangerous pathogens, as well as domestic and international transfers; (c) reporting internationally any release that could affect other countries; and, (d) sensitising scientists to the risks of genetic engineering, exploring national oversight of high-risk experiments and establishing a code of conduct for scientists working with pathogens.

2. Elaboration of a mechanism for international investigations of suspicious outbreaks of disease or alleged BW incidents, based on a Security Council determination that an inspection should take place.

3. Countries adopt and implement strict biosafety measures based on World Health Organisation (WHO) or equivalent national guidelines, support the WHO's global disease surveillance and response programme and develop a capacity for rapid emergency medical and investigative assistance in the event of a serious outbreak of a disease.

Bolton argued that with the exception of the final measure none of the others was contemplated in the draft BWC Protocol.

As Seth Brugger, managing editor of Arms Control Today, has commented, the U.S. proposals cannot be a substitute for the Draft Protocol. Even if these were incorporated into the Conference's final declaration, they would only be politically binding and not have the force of international law. Also, these provisions lack the key elements of the Protocol, such as an international implementing organisation and verification procedures, which is seen as crucial for making the BWC effective. Moreover, contrary to what Bolton has said, national legislation to ban BW activities and a role for international bodies such as the WHO are already contained in the Protocol. More significantly, the Convention itself requires "countries to cooperate in carrying out any investigation which the Security Council may initiate", the difference being that the Convention requires a complaint from a State Party whereas the U.S. proposal seeks a determination by the Council itself.

Rakesh Sood, Ambassador at the Permanent Indian Mission to the Conference on Disarmament in Geneva and head of the Indian delegation, said in his remarks at the Review Conference: "A cherry-picking approach focussing on elements of the Rolling Text or the Composite Text is unworkable, as also the attempts to focus on some elements of the Convention at the exclusion of others. Such an approach is akin to doing away with the lifeboat and seeking to rely on lifejackets. What we need is both the multilaterally negotiated, legally binding instrument that constitutes the lifeboat as well as individual lifejackets in the form of national level measures..."

In an evaluation paper on the U.S. rejection of the Draft Protocol, researchers Graham Pearson, Malcolm Dando and Nicholas Sims at the Department of Peace Studies, University of Bradford, have argued that the option available now for the AHG is to take the Draft Protocol to the General Assembly through a resolution co-sponsored by all those States Parties that are in favour of early completion of the Protocol. In parallel, the U.S. should be encouraged to reconsider its position and join the Protocol. "But if it does not, then the rest of the world should have the courage of their convictions and not miss the opportunity that the Protocol provides for a safer, more secure world." Whether this is possible in November remains to be seen in the light of the events at the closing hours of the Fifth Review Conference.