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Disarmament Diplomacy

Issue No. 40, September - October 1999

The BTWC Protocol: The Debate About Visits
by Henrietta Wilson

Introduction

The Ad Hoc Group of States Parties to the Biological and Toxin Weapons Convention (BTWC) was set up in 1994 by a Special Conference of the States Parties to develop a legally binding instrument or Protocol to strengthen the effectiveness and improve the implementation of the BTWC. The Ad Hoc Group has been active and productive during this time - with a Rolling Text for the Protocol being developed since July 1997. Naturally, there are areas of disagreement within the Ad Hoc Group, and an examination of the aspects of the Protocol that have yet to be finalized, and States Parties' positions with respect to these, suggests that the remaining work of the Ad Hoc Group is not straightforward. Nevertheless, although the attitudes of the countries involved are divergent, the problems are not irresolvable, and given the necessary political will, the remaining work could be completed relatively quickly.

Monitoring Compliance

A principal issue currently occupying the negotiators is the nature and need for specific measures to monitor compliance, a fundamental component of the original mandate for the Protocol. It is clear that there are divergent views on the details of such measures within and between the principal negotiating groups, although progress was made at the Sixteenth Session of the Ad Hoc Group (September 13 - October 8). Following the comprehensive summary of those negotiations from Graham S Pearson in Disarmament Diplomacy 391, this article seeks to examine the positions of the protagonists and the attempts to find a resolution.

Various measures are currently included in Article III Compliance Measures of the draft Protocol. The basic framework of elements comprises mandatory declarations of activities and/or facilities, visits to ensure that declarations are complete and accurate, and short notice investigations invoked by a challenge from a state party to address concerns about possible non-compliance. In addition, the Rolling Text also includes language on measures to encourage timely submission of declarations, and consultative mechanisms to clear up ambiguities, uncertainties, anomalies or omissions in declarations. The negotiators are also wrestling with ways of designing the declaration forms so as to affect only relevant facilities and to minimise the number of facilities that will be subject to the requirements of declarations and visits.

Before outlining the differing views on these measures, the different terms that are used by the negotiators need to be explained, since they concern technically complicated details and have a very specific meaning in the context of the draft Protocol. The terminology is further complicated by the fact that issues have become highly politicised with the result that some words are taboo. The measures outlined in the previous paragraph incorporate many provisions that have in previous contexts been categorised as verification measures. But the word "verification" is not used, apparently because some states feel that it would imply that compliance with the BTWC and the Protocol could be monitored with more confidence than is really the case. The United States, for instance, feels that because compliance with the Protocol/Convention could not be monitored with 100% certainty, "verification" is a misleading term. Whether or not this is the reason for avoiding the term "verification", the US position reveals a deep misconception of the role and aspirations of verification. It is a truism that no verification in arms control and disarmament regimes can provide 100% assurance that states are not violating a treaty; rather verification is one component within a treaty regime that can build confidence in compliance, and provide impediments to non-compliance.

On-Site Visits

It is important to note that there are two different types of on-site activity: visits, which are aimed at confirming whether declarations are complete and accurate, and investigations, which address cases of suspected non-compliance, and which could be conducted at areas where the use of biological warfare is suspected or at facilities which are suspected of violating the BTWC. The Ad Hoc Group has reviewed various types of visit, and is currently considering the possible inclusion of randomly-selected visits of declared facilities (sometimes referred to as transparency visits), declaration clarification visits which would follow a clarification procedure, and voluntary visits instigated by a state party inviting a visit from the international body overseeing implementation of the Protocol for one of several reasons. Of these types of visit, only randomly-selected visits to relevant facilities would be a mandatory follow up to declarations, although relevant facilities would only be visited on a random basis, and provision has been made so that no state party would receive more than two such visits in a year.

Positions Within The Western Group

There is broad agreement on the importance of including provisions for declarations and investigations in the Protocol; but there has been disagreement within the Western Group2 over the necessity for randomly-selected visits in the Treaty regime. The EU most recently reported its stance in a Common Position agreed on May 17, 1999, stating that randomly-selected visits are an essential component of an effective Protocol regime. In contrast, the US position, expressed in an exchange of letters between the US Secretary of Commerce William Daley and US Secretary of State Madeleine Albright initiated by Daley on 24 May 19993, opposes all visits except voluntary ones; apparently the US will not countenance any form of visits that are mandatory, which in this context means randomly-selected visits. It is understood that the United States position has been portrayed by US negotiators as immutable, having been fixed upon at cabinet level.

The US position closely mirrors the ideas of the Pharmaceutical Research and Manufacturers of America (PhRMA) -- the leading trade association of the research-based pharmaceutical industry of the United States.4 PhRMA is opposed to any form of visits other than investigations following substantiated challenges, and explains its opposition in terms of, inter alia, the risk of loss of confidential business information that would be imposed on the industry by other forms of site visit. However, PhRMA's views do not necessarily reflect the already highly regulated US industry as a whole. But because of PhRMA's strong opposition, the US Government was able to refer to the industry's concerns when outlining its stance against randomly-selected visits. Bearing in mind the US Senate restrictions imposed on its ratification of the Chemical Weapons Convention (CWC), it cannot be ruled out that the US position in the Ad Hoc Group represents a more fundamental stance in some elements of the United States against all intrusive compliance measures, or, indeed, against all forms of multilateral arms-control.

There have been two attempts to bridge this difference between the EU and the United States. In June, prior to a Western Group meeting to prepare for the Sixteenth Session of the Ad Hoc Group, the UK distributed a paper on transparency visits, in effect proposing a compromise. However, it seems that the hoped-for consensus on the proposal did not develop in the Western Group. In September, the Non-Aligned Movement (NAM) Group5 and "other states" submitted a working paper to the Sixteenth Session on "Proposed Text For Visits: II. Follow-Up After Submission Of Declarations".6 South Africa, the chair of the NAM, had taken a leading role in co-ordinating this position among the NAM and with "other states". Like the UK paper, it offers middle ground on "randomly-selected visits", albeit containing square-bracketted passages of alternative language that reflect differing views among its sponsors. Following the Sixteenth Session, further language was incorporated into the Rolling Text to reflect this development.

Emerging from the difference of positions in the Ad Hoc Group is a growing impatience with the United States, increasingly perceived as taking actions which undermine global efforts to contribute to the development of international regimes against weapons of mass destruction. There is an increasing view among some delegations of States Parties to the Ad Hoc Group, that they will have to choose between having a regime that accommodates the United States' reluctance for intrusive verification but that is weak, or proceeding with an effective mechanism in the knowledge that the United States may pull away and refuse to participate. However it should be noted that non-participation by the US could have damaging implications; if the US does not sign on to the Protocol, then other states may follow suit.

Meanwhile, analysis from independent experts7 indicates that an effective regime must accommodate a package of different types of visits, including some form of mandatory visits, which may be random and infrequent and still effective, to provide assurance that declarations are complete and accurate. Furthermore, trial visits by States Parties8 indicates that such visits can be managed in such a way that they do not put a disproportionate additional strain on industry, and which would not compromise national security or commercial secrets, while still confirming the validity of declarations.

Conclusion

It is clear that the Ad Hoc Group would have failed if it were to conclude without providing effective means of monitoring the compliance with the Treaty and the Protocol. In considering the effectiveness of proposed measures it is useful to weigh up what effect such provisions might have had in preventing or impeding the two known violations of the BTWC to date - by the former Soviet Union and Iraq. In the first case, the Soviet Union, whose non-compliance was in effect acknowledged in the 1992 declaration by Russia under the BTWC confidence-building measures, developed a clandestine programme; one of the cited reasons for this was their conviction that the US also had a clandestine programme. It would seem that randomly-selected visits might well have deterred the Soviet Union's programme, as mandatory, random, visits could have allayed their suspicions. The existence of Iraq's clandestine biological-weapons programme was verified by the United Nations Special Commission (UNSCOM), appointed after the 1991 Gulf War to oversee Iraq's renunciation of weapons of mass destruction. Although Iraq only ratified its signature of the BTWC after the 1991 ceasefire had required it to do so, if a system of randomly-selected visits had been in place, they would certainly have acted as an impediment to the programme, imposing greater costs on the programme in terms of the need to go to greater lengths to conceal it. In both these cases, voluntary visits without randomly-selected visits would not have deterred violations. For Iraq, voluntary visits simply would not have taken place, while voluntary visits at particular facilities in the United States would not necessarily have convinced the Soviet Union that there was no clandestine activity elsewhere.

The incorporation of the NAM Group paper into the Rolling Text implies that there is a greater willingness to accept visits than ever before in the Ad Hoc Group. Although it is clear that there are divergent views on details, this acceptance of the concept of a package of on-site visits means that attention can now focus more on one of the last remaining areas requiring detailed consideration - the question of the triggers for declarations and the detail of declaration formats - which bodes well for a satisfactory completion of the negotiations on Article III Compliance Measures.

Notes & References

1. "The BTWC Protocol Enters the Endgame", Graham S Pearson, Disarmament Diplomacy 39, August 1999.

2. The Western Group is a caucus of States Parties that meet to try to establish common positions for the AHG negotiations.

3. Barbara Hatch Rosenberg, pp 1 & 12, The ASA Newsletter No. 73, 27 August 1999.

4. PhRMA's position is discussed in "Industry's Role, Concerns, and Interests in the Negotiation of a BTWC Compliance Protocol", Gillian R Woolett, p 39-52, in "Biological Weapons Proliferation: Reasons for Concern, Courses of Action", The Henry L Stimson Center Report No 18, January 1998.

5. The NAM Group is a caucus of States Parties that meet to try to establish common positions for the AHG Group negotiations.

6. BTWC/AD HOC GROUP/WP.402, September 22, 1999.

7. Graham S Pearson, "Visits: an Essential Portfolio", Strengthening the Biological Weapons Convention Briefing Paper No. 20, April 1999.

8. See "The Biological and Toxin Weapons Convention: Report of a Joint UK-Brazil Practice Non-Challenge Visit", John Walker, Lorna Miller, Roque Monteleone-Neto and Ricardo Ayrosa, pp 121-130, in Richard Guthrie (Ed), Verification 1997, The VERTIC Yearbook, Oxford: Westview Press, 1997.

Henrietta Wilson will be monitoring the Seventeenth Session of the Ad Hoc Group of the BTWC in Geneva (November 22 - December 10) on behalf of The Acronym Institute and VERTIC.

© 1999 The Acronym Institute.

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