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Disarmament Diplomacy

Issue No. 41, November 1999

Clinton's Record On Chemical And Biological Arms Control
By Leslie-Anne Levy

The turn of the century presents followers of US chemical and biological weapons non-proliferation initiatives with a unique occasion to reflect on progress made and opportunities missed. Since winning office in 1992 President Bill Clinton's initiatives on chemical and biological disarmament have been a mixed bag of successes and shortcomings.

As a July 1999 White House non-proliferation fact sheet highlighted, there is much progress that can be seen. Take for instance the entry into force of the CWC in 1997, arguably the most innovative and far-reaching arms control treaty ever negotiated. Momentum towards a verification protocol for the BTWC has also increased over the past seven years, thanks partly to an invigorated US role in the ongoing negotiations in Geneva. The Cooperative Threat Reduction programme, or Nunn-Lugar legislation, has also directed much needed resources to the former Soviet Union's chemical and biological weapons complexes.

Yet the news is not all good for the CWC and BTWC, the twin pillars of chemical and biological arms control. As its third anniversary approaches, the CWC faces significant challenges, with key data declarations still lacking and the novel inspection regime hitting some potholes along the way. In addition, the BTWC protocol talks may not conclude before the 2001 deadline, due in part to a failure of American leadership.

The CWC Regime In Its Infancy

The CWC marks the peak of twentieth century chemical weapons non-proliferation and disarmament. Despite the fact that entry into force took longer than expected, the hard won Treaty has performed ably in its infancy. Yet to the surprise of many the United States, one of the agreement's earliest and most stalwart supporters, has fallen behind on its CWC obligations, compromising its leadership role and causing a ripple effect of implementation problems.

Since the CWC entered into force in April 1997 the Technical Secretariat of the Organization for the Prohibition of Chemical Weapons (OPCW) has managed to successfully juggle a variety of sometimes conflicting demands.1 Staff members have spearheaded on-site inspections while minimizing imposition. They have monitored compliance with the Treaty while protecting confidential national security and business information inherently involved in the inspection process. Working cost-effectively, the inspectors have visited former production and chemical weapons storage facilities, as well as commercial plants within the requisite Treaty time lines. Although states receiving these inspections have sometimes approached the process warily, the Technical Secretariat's monitoring activities have encouraged transparency and international cooperation.

The noteworthy accomplishments of the CWC's inaugural years have set a positive example for subsequent non-proliferation regimes. Nine member states have declared former chemical weapons production facilities, including four that still have arsenals in their possession. The Technical Secretariat has already conducted over 550 inspections at both military and commercial installations in some thirty countries. The Technical Secretariat has assembled an extensive database on past weapons programmes and current dual-use chemical production that will aid future monitoring efforts. In addition, inspection costs have been lower than anticipated, largely the result of innovative planning and sequential inspections.2

Some glitches have developed as CWC implementation has progressed. Declarations have not yet been received by the Technical Secretariat from nearly a quarter of the member states. Declarations of military and commercial activity are required by the agreement within explicit time limits.3 Although some of the missing declarations are from countries with no chemical weapons-related activity or small chemical industries, one of the most glaring absences has been the US declaration of its chemical industry activity.

Given the critical US role in the design and global embrace of the agreement, the Senate's ratification of the CWC just five days before entry into force shocked many observers.4 Credit for ultimately securing Senate approval of the Treaty goes not to the White House, but rather to the US chemical industry, widely respected military commanders, and Senate leaders. Opportunities to swiftly secure the Senate's blessing without a high-profile struggle were missed during Clinton's first term. However, the ratification battle and the ensuing domestic legal requirements amounted only to a preface in the annals of CWC implementation. As one author noted in the wake of the 1993 Treaty signing, "Implementation of the CWC will be an effort that will not end with Senate ratification or the adoption of accompanying legislation. The administrative challenge will be long term."5

The process of bringing the United States in line with Treaty requirements has been long drawn out, due in part to the way in which American government works and in part to a lack of focus from the administration. After ratification, the Treaty faced a circuitous route through the US bureaucracy. The first major domestic hurdle was the passage of implementing legislation delegating responsibilities among US federal agencies, including the departments of Commerce, Defense and State.6 Next came a June 1999 executive order from the President, tasking agencies with the drafting of regulations that would require the chemical industry to declare CWC-relevant activity. Draft regulations were published in mid-July.7 These regulations must be finalised before US companies can begin filling out declarations and submitting them to the Commerce Department. Given the complexity of the task, it came as little surprise when the US delegation informed the Conference of States Parties in June that the submission of an industry declaration in 1999 was unlikely.

Once all is said and done, the ratification and initial declaration process for the United States will have taken close to seven years. While a drawn out process is preferable to a rejection of Treaty responsibilities altogether, the delay in the US industry declaration has needlessly caused tensions with other countries that have met Treaty deadlines and opened their industries to inspections. European governments have protested that the lack of a US industry declaration left European countries shouldering close to 60 per cent of industry inspections in 1998.8 Prospects for another year passing without inspections of US commercial sites made putting the final touches to the OPCW's 2000 budget all the more complicated as Treaty members insisted that initial visits to US sites should unfold before re-inspections in other countries.

The hold-up in the US declaration is unfortunate for a number of reasons. First, on an organizational level, the Technical Secretariat's inspection schedule has suffered as a result. Personnel in The Hague face a bottleneck in routine inspections, leaving inspectors under-utilised. As the OPCW Director-General noted in June 1999, the second half of the year would witness "a token rate" of industry inspections rather than the two to three weekly missions that the inspectorate could otherwise handle.9

Most importantly, however, the lapse leaves the United States in the awkward position of being in violation of the Treaty. As a corollary, US compliance status renders hollow American criticisms about other countries' implementation efforts, praise for its own accomplishments, and general observations on the necessity to adhere to the terms of this and other treaties.10 In effect the United States is compromising its leadership role, an unfortunate decision during the early phase of Treaty implementation that could still benefit greatly from constructive examples and precedents.

Difficulties have also arisen from US implementing legislation itself. Exemptions to certain Treaty provisions were inserted into the legislation and allowed to pass without a fight from the White House. These exemptions undermine two of the CWC's most innovative monitoring tools: challenge inspections and sampling. The first exemption permits the United States to refuse a challenge inspection "where the President determines that the inspection may pose a threat to the national security interests of the United States."11 This provision directly contradicts the CWC's legally binding requirement for Treaty members to accept challenge inspections at any facility within their borders and without delay.12 Secondly, Congress gutted the sampling provision that allows inspectors to take samples and have them analysed off-site at certified laboratories.13 The implementing legislation instead states, "no sample collected in the United States pursuant to an inspection permitted by this Act may be transferred for analysis to any laboratory outside the territory of the United States."14

On the whole, as the century draws to a close, US non-proliferation efforts with regard to chemical weapons merit mixed reviews. Despite some hiccups in overall CWC implementation, the current state of play is surely a distinct improvement over a decade ago. The CWC is in force and is methodically prompting states to dismantle chemical arsenals, provide information on dual-use chemicals, and build confidence among Treaty members. Fortunately, tarnishes on the US record have evident and manageable solutions, the enactment of which would go a long way towards bolstering the US claim to being at the vanguard of global chemical weapon disarmament efforts. An obvious step in this direction would be the prompt submission of an industry declaration. Since the hold-ups are the product of a bureaucratic logjam, rather than industry resistance or intransigence, the sooner the US government settles on the requisite regulations and collects relevant data, the sooner a detailed declaration can be submitted to the Technical Secretariat and routine inspections of US commercial facilities can commence. While the missing US declaration is by no means the root of all the problems facing the Technical Secretariat, greater US attention to its own implementation would put the onus on other Treaty members to improve their own behaviour and would better position the United States to pursue suspected cheaters.

Similarly, Congress could repeal the exemptions. Doing so would close a gaping domestic loophole. This could in turn undo a dangerous precedent for other states to selectively refuse the intrusive CWC inspection measures that the US government insisted on in the first place.

Lumbering Towards The BTWC Finishing Line?

In January 1995, representatives from over fifty countries opened discussions in Geneva exploring the possibility of crafting a compliance protocol to the BTWC. Created in September 1994 this Ad Hoc Group began consultations to consider verification measures for the BTWC with a goal of finalising a legally binding protocol in time for the BTWC's Fifth Review Conference in 2001.15 The pace of the negotiations accelerated in June 1997 with the assembly of a Rolling Text for use in subsequent discussions. Within months the document exploded to a length of several hundred pages, encompassing 23 articles, seven annexes and six appendices.

With time now working against them, negotiators have intensified the meeting schedule. In the final four months of 1999 the Ad Hoc Group is expected to spend close to seven weeks in discussions. Increasingly, some experts argue that the requisite political will to conclude the negotiations now exists, but that argument has not been borne out to date with consistent high-level attention in Geneva and Washington.16 Since the group was formed nearly five years ago, some 400 working papers have been submitted on a wide range of topics. Individual member states, groups of states - such as the Non-Aligned Movement (NAM) countries - and Friends of the Chair have all tabled topical working papers.

The US role in the negotiations during the Ad Hoc Group's early stages was surprisingly quiet. The Clinton Administration had made a marked shift from the policies of its predecessor, publicly supporting the development of a BTWC protocol.17 In a speech before the UNGA in 1996, President Clinton announced support for efforts to "giv[e] the Biological Weapons Convention the means to strengthen compliance, including on-site investigations when we believe such weapons may have been used, or when suspicious outbreaks of disease occur."18 In that speech he ambitiously called for completion of the assignment by the end of 1998. Yet, it was not until January 1998, some three years into the work of the Ad Hoc Group, that the United States mustered a negotiating position for its BTWC negotiators.19 In the 1998 State of the Union Address, Clinton went beyond his somewhat vague UN reference to support "a new international inspection system to detect and deter cheating."20 With the simultaneous release of a more detailed position on the shape of an acceptable protocol, the stage was set for a more constructive US role in the negotiations.21

The January announcement focused on four pillars of a possible BTWC protocol: annual declarations of activities and facilities suited to potential biological weapons development; voluntary visits, permitted at the discretion of individual facilities; non-challenge clarifying visits to check ambiguities in an annual declaration; and challenge inspections, launched only with the approval of the Treaty implementing organisation's governing body.22 Ultimately, the proposal amounted to a middle ground between a new intrusive on-site monitoring regime and the status quo.

While the White House had already voiced support for a tighter BTWC, the details were slow to emerge. Then came another flare-up in Iraq and growing concerns about that country's weapons of mass destruction. These were concurrent forces that refocused presidential attention on the threats posed by biological arms and the potential role of on-site monitoring. On the other hand, certain agencies, including the Commerce and Defense departments, were - and still are - wary of intrusive on-site monitoring measures. They question the ability of these methods to detect non-compliance and worry about their potential for incorrectly pointing an accusatory finger at legitimate commercial activities. Were such measures to be incorporated into a BTWC inspection regime, some experts worry that the resulting protocol would merely encourage a false sense of security while failing to unearth illicit biological weapons programmes.23 These players were no less concerned about the dangers of germ warfare than the White House; they simply disagreed about the optimum way to address the biological weapons conundrum while balancing the need to protect national security and confidential business information.

One US group directly affected by the discord between US agencies was the pharmaceutical industry. A reciprocal inspection exercise in the early 1990s with Britain and Russia - known as the trilaterals - had soured industry to the sorts of on-site measures currently under consideration by the Ad Hoc Group.24 As part of the process, Russian delegations had been given wide access in two US commercial facilities, over the head of industry concerns. While no breaches of security appear to have occurred, the relationship between industry and the US government suffered: industry personnel ultimately concluded that the US government could not be counted on to protect their proprietary commercial information. A base of goodwill between two US groups that should ideally work closely together was seriously undermined.

The industry-government discord over the BTWC is especially disheartening when contrasted with the integral role the US chemical industry played in constructing the CWC and helping to steer it through Congress. Industry joined the process to hammer out the CWC in the 1970s, concluding that contributing expertise to the negotiations was preferable to standing on the sidelines.25 Industry representatives formed study groups; offered expertise; hosted trial inspections. Lines of communication and a positive working relationship grew out of this two-decade process. The chemical industry showed that it could and should play a constructive part in the architecture of an arms control process and the implementation of the final agreement.

Unfortunately, the positive example of the CWC negotiations has not yet taken root in the BTWC process. Relations between the US pharmaceutical industry and government are comparatively distant. True, the official position of the Pharmaceutical Research and Manufacturers of America (PhRMA) is supportive of limited efforts to strengthen the BTWC.26 However, mistrust between US industry and government representatives is more prevalent than constructive dialogue. These tensions carry with them real implications for the eventual shape of a protocol and the likelihood of any such agreement receiving the Senate's support. In fact, the US government has a responsibility to ensure that compromises of proprietary information do not occur, to explore ways to finesse the narrow line between giving up too much information and offering too little.

The January 1998 articulation of a position and negotiating strategy marked a turning point in the US role in the BTWC talks. Yet a recent administration assertion that the United States is "at the forefront of international efforts" to finalise a BTWC protocol stretches the point.27 The unresolved disorder between the various US agencies involved continues even as the Ad Hoc Group plugs away at the protocol. If steps are not taken, the United States could well forsake an important leadership opportunity to fashion an agreement that is acceptable to the US pharmaceutical industry and capable of achieving its stated purpose.

As Congress works to finalise fiscal year 2000 appropriations, a constructive proposal has been made requiring the US government to re-energise efforts to identify potentially acceptable on-site monitoring tools for BTWC-related visits. The proposed legislation calls for trial visits to US sites, an effort that would go a long way towards the United States reclaiming a leadership role in the BTWC protocol process. Already a number of trial visits, including an April 1999 trip to a Swiss vaccine production facility, have taken place as part of the Ad Hoc Group discussions.28 Trial runs in the United States would demonstrate to the world American dedication to searching for monitoring tools that have a chance of detecting non-compliance and that protect sensitive commercial and national security data. These exercises could also act as an olive branch to the US pharmaceutical industry.

Conclusion

Official statements consistently tout chemical and biological weapons arms control agreements as an instrumental part of the overall strategy to deter the use of these weapons and to detect covert weapons programmes. Yet a real gap has developed between rhetoric and actions in Washington. The Clinton Administration has not taken advantage of clear opportunities to undo some of the damage that the US government has done to the chemical and biological weapons regimes. As a result, the CWC and BTWC face some rocky patches in the road ahead. Without a timely US behavioural shift and a devoted effort to repair what has been broken, international chemical and biological weapons disarmament efforts could be disabled and the non-proliferation legacy of the twentieth century's final American president permanently stained.

Notes and References:

1. To implement its provisions, the CWC created the OPCW, based in The Hague. The OPCW comprises three parts: the Technical Secretariat; the Conference of States Parties; and the Executive Council. See the Chemical Weapons Convention, Article VIII.

2. One analyst opposing the treaty gauged the total number of inspectors needed to implement the CWC to be close to 500, boosting estimated annual labour costs alone to US$145 million. See "Problems With a Chemical Weapons Ban", Kathleen Bailey, Orbis, Spring 1992, 245. The overall annual operating budge for the OPCW has averaged US$65 million.

3. Initial declarations were due at the Technical Secretariat within thirty days of entry into force. See the Chemical Weapons Convention, Article III and Article VI, paragraph 7.

4. For a detailed discussion of the debate in the US see "Mangling a No-Brainer: How Washington Barely Ratified the Chemical Weapons Convention", Amy E. Smithson, The Battle to Obtain US Ratification of the Chemical Weapons Convention, Washington DC: The Henry L. Stimson Center, July 1997.

5. "The Future US National Authority", Kyle Olson, Shadows and Substance: The Chemical Weapons Convention, ed. Morel and Olson, Boulder, Colorado: Westview Press, 1993, p190.

6. The Chemical Weapons Convention Implementation Act. Pub L. 105-277, October 21, 1998. Legislators folded the implementation act language into the Omnibus Consolidated & Emergency Supplemental Appropriations Act.

7. Executive Order 13128, "Implementation of the Chemical Weapons Convention and the Chemical Weapons Convention Implementation Act," June 25, 1999. See departments of Commerce and State, Regulations Implementing Provisions of the Chemical Weapons Convention and the Chemical Weapons Convention Implementation Act of 1998 on the Taking of Samples and on Enforcement of Requirements Concerning Record Keeping and Inspections: Proposed Rules. 15 CFR Parts 720 through 721 and 22 CFR Part 103. In Federal Register. July 21, 1999; Vol. 64, No. 139. FR Doc. 99-18230 and FR Doc. 99-17617. For more on interagency discord see "US Still Out in the Cold on Chemical Arms Treaty", Lois Ember, Chemical and Engineering News, April 19, 1999, p42.

8. "Problems and Prospects of CWC Implementation After the Fourth Session of the Conference of States Parties", Alexander Kelle, Disarmament Diplomacy, Issue No 38, June 1999. 9. "Statement by the Director-General to the Conference of the States Parties at its Fourth Session," OPCW, C-IV/DG.12, p5, 28 June 1999.

10. In a statement to the Conference of States Parties in June, the US noted that it "continues to attach great importance to compliance as an indicator of effective implementation of the Convention." In the same statement the delegation ceded that the required industry declaration would probably not be forthcoming before early 2000, leaving the US in violation of the agreement and contradicting its previous affirmation. Statement to the Fourth Conference of the States Parties of the OPCW by the US Delegation to the OPCW, June 28, 1999.

11. The Chemical Weapons Convention Implementation Act. Pub L. 105-277, October 21, 1998, Section 307.

12. CWC, Article IX, para 8. A three-quarters vote by the Executive Council can halt challenge inspections. If the Executive Council allows an inspection to proceed, Part X of the CWC's Verification Annex spells out rules to be followed by inspectors and the inspected state, plus "managed access" provisions allowing the inspected state to take steps to protect confidential business or national security information.

13. CWC, Verification Annex, Part II, paragraph 55.

14. The CWC Implementation Act. Pub L. 105-277, October 21, 1998, Section 304(f)(1).

15. The 1996 final conference report for the Fourth BTWC Review Conference states the Ad Hoc Group would "intensify its work with a view to completing it as soon as possible before the commencement of the Fifth Review Conference and submit its report, which shall be adopted by consensus, to the States Parties, to be considered at a Special Conference." Final Declaration of the Fourth Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, BTWC/CONF.IV/9 Part II, Article XV. Geneva, November 25 to December 6, 1996.

16. Briefing papers published by the University of Bradford refer to burgeoning international will focused on concluding the BTWC protocol. See University of Bradford-Stockholm International Peace Research Institute joint website at http://www.brad.ac.uk/acad/sbtwc

17. A 1992 Bush Administration non-proliferation fact sheet said the US would "continue to urge universal adherence to the BTWC and increased support for the confidence-building measures agreed by the parties at the 1991 Review conference." No suggestion to strengthen the BTWC was made, despite discussions on possible verification options. See White House "Fact Sheet on Non-proliferation Initiative", July 13, 1992.

18. The White House, "Remarks by the President in Address to the 51st General Assembly of the UN," September 24, 1996.

19. For more on the US negotiating position see "Strengthening the BTWC: Moving Toward a Compliance Protocol" Jonathan B. Tucker, Arms Control Today, Jan/Feb 1998: p20-27.

20. White House, Office of the Press Secretary, "State of the Union Address By the President," January 27, 1998.

21. The vigour of US participation has increased since January 1998. A list of Ad Hoc Group working papers in the database at the University of Bradford Project on Strengthening the BTWC and Preventing Biological Warfare shows that nine out of twelve of US working papers have come in the months following announcement of a US position. This pales next to countries such as Britain and South Africa that have each contributed dozens. The Rolling Text and working papers are on the joint University of Bradford-SIPRI website at http://www.brad.ac.uk/acad/sbtwc

22. White House, Office of the Press Secretary, "Fact Sheet on the Biological Weapons Convention," January 27, 1998.

23. As one analyst wrote, a BTWC regime centered on routine on-site inspections "is unworkable and, ironically, might increase the likelihood of proliferation". "Be Realistic About Biological Weapons", Alan P. Zelicoff, Washington Post, January 8, 1998.

24. The agreement, which arose in the wake of concerns that Russia might not have shut down its offensive biological weapons programme, affirmed in the final statement their commitment to upholding and adhering to the Treaty. In the 1992 Joint Statement on Biological Weapons by the Governments of Britain, the US, and Russia, the parties outlined steps to resolve questions about Russian compliance with the Treaty. For a more detailed account of the trilateral fiasco, see "Man Versus Microbe: The Negotiations to Strengthen the Biological Weapons Convention", Amy E. Smithson, Biological Weapons Proliferation: Reasons for Concern, Courses of Action, Washington DC: The Henry L. Stimson Center, 1998, p107-128; and "Bioweapon Threat Seen Rising, But Treaty Talks Are Far From Getting Results", Mort Rosenblum, Associated Press, December 13, 1998.

25. See "Disarmament and the Chemical Industry", Kyle Olson, Chemical Disarmament and US Security, ed. Brad Roberts, Boulder, Colorado: Westview Press, 1992, p97-105; and "The Perspective of the Western Chemical Industry", Will Carpenter, Shadows and Substance: The Chemical Weapons Convention, ed. Benoit Morel and Kyle Olson, Boulder, Colorado: Westview Press, 1993, p115-126.

26. For instance, a July 1998 statement expressed scepticism about the usefulness of broad declaration requirements and willingness to open some facilities to inspections under certain circumstances. "Summary of PhRMA's Position on a Compliance Protocol to the Biological Weapons Convention" as drafted by the Pharmaceutical Research and Manufacturers of America (PhRMA), July 1998.

27. White House, Press Secretary, "Non-proliferation: The Clinton Administration Record," July 14, 1999.

28. Other voluntary national trials include: a December 1998 visit to a vaccine and serum production facility in Iran; August 1998 random visit to an Austrian pharmaceutical company; a visit to pharmaceutical research facility in Great Britain; and a June 1996 visit to a biotechnology company in Australia. Working papers on each of these exercises were submitted to the Ad Hoc Group for analysis and review.

Leslie-Anne Levy is a Research Associate with the Chemical and Biological Weapons Non-Proliferation Project at the Henry L. Stimson Center in Washington, USA.

© 1999 The Acronym Institute.

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