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Disarmament Diplomacy

Issue No. 43, January - February 2000

BWC Update

The BWC Protocol Negotiation 18th Session: Removing Brackets

Introduction

The Ad Hoc Group (AHG) of States Parties to the Biological and Toxin Weapons Convention (BWC) convened for its eighteenth session from January 17 to February 4, 2000. The AHG has met for a total of 47 weeks since 1995. With the expectations associated with the 25th anniversary of the entry into force of the BWC, the 75th anniversary of the signing of the Geneva Protocol in June of this year, and the fast approaching BWC Fifth Review Conference next year, the question of an "endgame" has become more acute. The word is mentioned often in the corridors, but whether or not the time is really ripe for large-scale political bargaining will be tested in the following sessions. The AHG has another nine to eleven weeks of negotiations this year, with the next session running over three weeks in March.

Background

The BWC dates from 1972 but was concluded without any means for verifying or enforcing its provisions. The year 2000 marks the sixth year of negotiations for an additional Protocol to "strengthen the effectiveness and improve the implementation" of the BWC. The mandate to negotiate the Protocol came from the Special Conference of States Parties in 1994. However, the groundwork for the negotiations was laid in the so-called VEREX process in 1992-1993 when a group of governmental experts looked into the possibility of BWC verification measures.1 Negotiations began in January 1995 in the AHG format. The Final Statement of the Fourth Review Conference of the BWC in 1996 welcomed the AHG's intensification of work "with the view to completing it as soon as possible before the Fifth Review Conference"2 scheduled for 2001.

The 18th Session

The pace of progress at the 18th Session was described by delegations as modest but steady. There were no major political breakthroughs in the key areas but the AHG was able to continue to reduce brackets from different sections of the draft with varied success. The square brackets denoting alternative options for the Protocol text were reportedly reduced by almost 15% to about 1500.

The section dealing with scientific and technical exchange and co-operation (Article VII) was among those in which more progress was made. The key development in this area came when the previously hesitant United States announced it could go along with the concept of a Cooperation Committee and brackets were removed around it. There were no signs of reconciliation on the issue of existing export controls, but Britain put forward some text that provided some ideas for further consideration. The AHG again spent a large part of its meeting on compliance measures (Article III). The United States (US) came out with a position paper on transparency visits at the end of the session. Regarding investigations, more brackets were cleaned from the text bringing the most contentious areas better into focus. Some modest progress was also reportedly made with regard to definitions although the basic disagreements still exist. It is understood that the tone of the debate on definitions is now more political in nature and that it is likely that this is closely linked with developments in other areas, such as compliance measures.

Scientific and Technological Exchange and Technical Co-operation

Article VII deals with the issues of technology sharing, trade and export controls. The article, as currently drafted, would require the States Parties to implement measures aimed at promoting scientific and technological exchanges and encouraging international co-operation in the field of peaceful biological and toxin activities, facilitating trade and exchanges in biological agents, equipment and materials and avoiding hampering economic and technological development of the States Parties. The article also envisages an institutional mechanism, a Cooperation Committee, as a forum for technical co-operation. The article was one of the most debated because of the still divergent views of delegations on the role of existing export controls and, in this context, the Australia Group.3 The issue of a Cooperation Committee has also divided the AHG, in particular the question of its powers.

Delegations spent five meetings on discussing Article VII in the 18th Session. Many delegations felt that this was one of the areas in which there was more notable progress during this session. The major breakthrough in this article reportedly came when the United States agreed on the concept of a Cooperation Committee. The US had previously requested that the AHG maintain brackets around the term but now stated it could agree on their removal. The move was received with satisfaction in particular by the Non-Aligned Movement (NAM) delegations. However, many were quick to point out that there still exists disagreement on the role and powers of the Cooperation Committee. Delegations in the NAM and China want to define the role and strengthen the powers of the Committee further.

The AHG was able to remove more brackets when it resolved the previously debated question on whether the States Parties should submit a declaration or a summary report on the activities they had taken in order to fulfil their co-operation obligations under the Protocol and the Convention. The draft now speaks of a declaration, the content of which is a general description of the measures taken to fulfil their obligations. It is understood that Western delegations agreed on the notion of a declaration in this Article with the understanding that it would not be construed to mean that they agreed also to its inclusion as a declaration in the context of Article III. It is understood, however, that delegations in the NAM disagree with this interpretation and may insist on the requirement of declaring the measures taken under Article VII of the Protocol and Article X of the Convention in the meaning of Article III. The difference between the two interpretations is the question of follow-up: declarations under Article III are subject to follow-up measures such as visits and clarification procedures.

The question of whether biodefence co-operation should be addressed in Article VII remains unresolved. The US and Britain reportedly oppose the treatment of biodefence under this article arguing that the question should be dealt with in Article VI on assistance and protection against biological and toxin weapons. Some delegations in the NAM, however, want to address the issue under Article VII, and have proposed paragraphs on biodefence co-operation, including making biodefence instruments, equipment and technologies available on request and collaborative research and join ventures. They argue that some technology sharing in biodefence is relevant for the sake of the credibility of the regime.

Export Controls

Throughout the negotiations, export controls have been one of the areas in which there has been little, if any, narrowing of views. The issue culminates around the problem on how to deal with the existing export control arrangements, such as the Australia Group, once the Protocol enters into force. Some delegations, such as India, Iran, Pakistan and China, put forward the argument that the Australia Group should cease to exist after the Protocol's entry into force. The Western Group, on the other hand, resists this and defends its continuation.4

The section related to export controls on measures to strengthen the implementation of Article III of the Convention5, although still quite heavily bracketed, had some new elements added for further discussion . Britain reportedly brought some ideas forward on this section at the 18th Session which were incorporated in the Rolling Text with brackets. Paragraphs were added that requires the States Parties to notify the Technical Secretariat of any transfers of fermenters or bioreactors with volumes equal to, or in excess of, 100 litres when the equipment is destined for use in a maximum biological containment laboratory or facility. There is a similar requirement on an annual basis for any transfers of aerosol testing chambers that have a capacity of one cubic metre or more. Notification of the receipt of such items is also required. Furthermore, it is proposed that information on such transfers or receipts should be made available to States Parties if they so request. The language proposed by Britain was received with interest by various delegations. It remains to be seen, however, whether deeper discussion on export controls will start in the next session or wait until a deal is being struck in the endgame.

Compliance Measures: Declarations, Visits and Investigations

Article III deals with measures to monitor States Parties' compliance with the Protocol and Convention. These include declarations of activities and facilities, visits as a follow-up to declarations, and investigations to deal with non-compliance concerns, among other issues. In addition, the heavily debated issue of export controls is also addressed in the context of measures to strengthen the implementation of Article III of the Convention. The AHG spent altogether more than ten sessions on these at the 18th Session (a little over six meetings on compliance measures and four on investigations). It went through all the declaration triggers, discussing in particular the other production facility and biodefence triggers, on which there are reportedly still clear differences of opinion. Visits were covered partially, with discussions focussed mainly on the selection mechanism for visits and what the final report after a visit should be cover. The discussion on investigations helped indicate where the outstanding areas of disagreement are.

The selection of facilities to be visited was discussed but remains unresolved. There are two schools of thought on the selection mechanism. According to one, visits should take place on the basis of proportionality, i.e. the visits would be focussed mostly on to those countries with most facilities. India is known for supporting this mechanism. The other, favoured by many Western countries, suggests that visits should be distributed as widely and equitably as possible among those states submitting declarations. The content of the final report following a visit was also under discussion. The opinions on the report are divided between those who think that the report should be a factual account of the visit and those who think that it should include also assessments by the visiting team. Opinions on whether copies of the report are made available to States Parties also differ.

The United States reportedly circulated a paper at the AHG explaining its position on transparency visits, in particular on the purpose and scope of such visits. It is understood that the US position is that transparency visits should not be considered as a way of ensuring that declarations are accurate and complete, and that the mandate of the transparency visits should be defined accordingly. Furthermore, the United States reportedly considers that the visits should consist of only a tour and a briefing at the facility and should take place at the discretion of the visited State Party. It resists any intrusive measures in this context. The fact that the United States circulated the paper in the AHG could be interpreted as a first sign of a US willingness to consider the inclusion of transparency visits in the Protocol. The paper was circulated towards the end of the session so reactions to it are likely to be seen in the March session. However, the paper was welcomed for at least bringing some clarity to the US position on transparency visits, though some felt that this would have been more useful early in the negotiations.

Regarding investigations, various areas of disagreement have come more clearly into focus, such as the issue of expansion of field investigations to facilities. It is understood that delegations agree that a request must be made in order to expand the investigation to facilities in the investigation area. However, there is disagreement on who should make the request - the inspection team or a state party. Another question tackled was whether the area under investigation could be expanded during an investigation and whether new areas, in another geographical location, could be annexed to an existing investigation area. It is understood that India and China oppose the expansion. The issue of whether interviews during a field investigation could be conducted outside the investigation area, as suggested by Britain and the US, was another question debated and yet to be resolved.

Seat of the Organisation

The race for the seat of the future BWC organisation was intensified with a statement by the Swiss government on 31 January highlighting what Geneva could offer as a base for the future BWC organisation. Joseph Deiss, Head of the Federal Department of Foreign Affairs, spoke of Geneva's " highly developed and smoothly running infrastructure," the presence of the international community and the "large number of international research and training institutions" that already exist there.6 The Netherlands, another candidate for the seat of the organisation, arranged a seminar on the recruitment, training and operation of the future Protocol at the end of January in the Hague. The formal bids are yet to be submitted.

Outlook for 2000

All delegations seem to agree that the draft Protocol includes all necessary elements. However, different views come into play on how best to continue from here . Although the Rolling Text is confirmed as "the only basis for negotiations in the Ad Hoc Group"7 there are those who believe that going through the Rolling Text article by article and negotiating bracket by bracket may not be the best way to proceed. Delegations who are of this view feel that the AHG should widen its approach in order to produce better results. The European Union (EU) for example, has stated that it is ready to consider other mechanisms "to improve [the AHG's] working methods" with an open mind.8

However, there is growing awareness of the approaching Fifth Review Conference scheduled for 2001, the agreed "deadline" by which the AHG is expected to conclude the negotiations. Given the need for a special conference and the preparatory committee of the Fifth Review Conference before this, some feel that time is running short. The EU for instance has pressed for the early conclusion of the negotiations. In its May 17, 1999 Common Position the EU stated: "it is imperative to complete all the stages necessary for the adoption of the Protocol by a special conference of States Parties in 2000."9 India, on the other hand, has stated that it is satisfied with the current pace of progress and wants no 'artificial deadlines' for the negotiations. China has also emphasized that, while remaining optimistic about concluding the negotiations before the deadline, it considers the contents of the Protocol more important than its early conclusion. The differing perceptions on how the negotiations should be brought to an end were demonstrated also in the intense negotiations on this year's calendar at the 17th Session. The AHG had difficulty arriving at a common understanding of the number of weeks to be allocated for the year 2000. Many delegations felt afterwards that precious time and energy was spent on this when it should have been spent on substance.

With nine to eleven weeks of negotiations left for this year, some delegations feel that the AHG should "take the bull by the horns" and have a Chair's text10 before July to allow for its consideration in the July session. Whether the AHG will meet before the next scheduled session in mid-November, is as yet unclear and will be decided on at the July session. Many delegations are also concerned at the potential impact of the Russian - and particularly US - elections on the negotiations. However, delegations differ in their views on a Chair's text. India, for instance, has stated that the Rolling Text should be the only basis of the negotiations. The introduction of the Chair's text, some argue, could backfire if there is considerable disagreement on its introduction or on the major outstanding issues. There are concerns that views are still so far apart in some of the more controversial areas that the time is not ripe for the text. It remains to be seen whether the three-week session in March, will bring will bring progress in those areas and whether this will allow for the introduction of the Chair's text.

One of the major setbacks of the 18th session for many delegations was the cancellation of the proposed high-level meeting in connection with the 25th anniversary of the entry into force of the BWC on March 26. The initiative, proposed by Australia last year, was aimed at raising political awareness and thereby giving the negotiations more impetus. However, after consultations with delegations showed that the timing would have not been favourable, it was decided that the meeting would not take place in March. It is understood that it was felt that holding the meeting in March would not have allowed for the best possible benefits to help attain important and needed breakthroughs in the negotiations. It now seems that the meeting will need to wait until the negotiations are at a stage when it can help the negotiations to bear more fruit. It is understood, though, that a few countries are considering bringing their ministers to address the AHG in March.

Conclusion

The Chair of the AHG, Ambassador Tibor Tóth (Hungary), described progress at the 18th Session as steady. However, he pointed out that the brackets removed at this session had been 'easy ones compared to the ones ahead.'11 The cleaning of brackets from the text brought the difficult issues more into focus. In the future, progress will increasingly be measured, not so much in the number of bracket, but in the delegations' ability to bridge the gap in the areas of fundamental differences of opinion, in particular in the sections on technical co-operation, compliance measures, and export controls. Tóth urged delegations to have a close look at the remaining issues to pave the way ahead. How prepared delegations are to make compromises is yet to be seen. Although they differ on the introduction of a Chair's text, they all are aware of the expectations associated with the upcoming Review Conference. Their commitment to the completion of the negotiations and the signing of the Protocol before the 2001 Review Conference will be measured in the months to come.

BWC Ad Hoc 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 13 - 24.

In addition to these twelve weeks, the AHG has reserved two alternative sessions of two weeks in the second half of 2000, September 25 - October 6 and November 27 - December 8. The decision on whether to use one of the reserved sessions, and which one, will be taken at the twentieth session.

Notes and References

1. For more discussion on the formation of the AHG and its work from 1995 to 1997 see "Strengthening of the Biological Weapons Convention: Moving Towards the Endgame", Malcolm Dando, Disarmament Diplomacy, Issue 21.

2. BWC/CONF.IV/9.

3. The Australia Group is an informal arrangement of national export control coordination and implementation harmonization. The group consists of Argentina, Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovakia, South Korea, Spain, Sweden, Switzerland, United Kingdom and the United States.

4. For more discussion on the debate on the Australia Group, see "Strengthening the BWC: Issues for the Ad Hoc Group", Henrietta Wilson, Disarmament Diplomacy, Issue 42.

5. Article III of the Convention obligates the States Parties to undertake "not to transfer to any recipient, whatsoever, directly or indirectly, and in any way to assist, encourage, or induce any State, group of States or international organizations to manufacture, or otherwise acquire any of the agents, toxins, weapons, equipment or means of delivery… ".

6. Joseph Heiss, Head of the Federal Department of Foreign Affairs, January 31, 2000 in a statement to the Ad Hoc Group at the 18th Session.

7. "Procedural Report of the Ad Hoc Group of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and On Their Destruction." BWC/AD HOC GROUP/50 (Part I).

8. Markku Reimaa, Ambassador of Finland to the CD, on behalf of the European Union, November 22, 1999.

9. 1999/346/CFSP.

10. Chair's clean text proposal for the final version of the Protocol.

11. Tibor Tóth, Chair of the AHG, February 4, 2000.

Jenni Rissanen is the Acronym Institute's Analyst attending the BWC negotiations in Geneva.

© 2000 The Acronym Institute.

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