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Disarmament Diplomacy

Issue No. 54, February 2001

Pressure Mounts at Protocol Negotiations

By Jenni Rissanen

Introduction

The Ad Hoc Group (AHG) of States Parties to the Biological and Toxin Weapons Convention (BWC), charged with preparing a verification Protocol to the Treaty, held its twenty-second session in Geneva from February 12 to 23. The AHG now has seven weeks of scheduled negotiations to complete negotiations in time for the Fifth Review Conference of the BWC, scheduled for November 19-December 7 this year. With some of the most important parts of the Protocol's 'rolling text' still contested and in brackets, and with the current working methods apparently winding down in both speed and efficiency, several countries have called for a comprehensive Chair's 'vision text' to be introduced. Not everyone agrees to such an approach, though, probably fearing that, presented with such a text, they would be faced with a diplomatically awkward and politically unpalatable choice: 'take it or leave it'.

The Chair's more gradual approach of distributing 'building blocks' - his proposals for parts of the Protocol - has generally been accepted, although some important delegations still underline that the rolling text must serve as the basis of the negotiations. The 'building blocks' now cover more than 85% of the Protocol, and the Chair has indicated that he will issue "a more composite set of proposals", widely interpreted to mean the 'vision text', two weeks prior to the next session, due to begin on April 23. It remains to be seen how the Chair's proposal for the whole Protocol will be received. Much will depend on how it addresses some of outstanding and deeply divisive issues, such as the technology transfers and export controls.

Background

The mandate to negotiate a verification Protocol came from the 1994 Special Conference of States Parties. The revelation that some member states had been clandestinely operating biological weapons programmes added to the recognition that the effectiveness and implementation of the BWC needed to be strengthened. A group of governmental experts (VEREX) met from 1992-1993 to consider verification measures, and AHG negotiations on a Protocol began in earnest in January 1995. The group has now met for a total of fifty-nine weeks. The Fourth Review Conference of the BWC in 1996 mandated the AHG to complete the negotiations for the Protocol as soon as possible, and certainly before the Fifth Review Conference.

The BWC Review Conference - Deadline or Target Date?

At the beginning of the February session, the AHG had nine scheduled weeks left to conclude its task. However, even with the Review Conference fast approaching, there are still different interpretations as to the AHG's mandate and whether it means the Review Conference marks a deadline or a target date for the negotiations. The Fourth Review Conference welcomed the AHG's decision "to intensify its work with a view to completing it as soon as possible before the commencement of the Fifth Review Conference". Furthermore, it was decided that the Review consider the conclusions of a Special Conference, to be held as soon as possible before the Review Conference, "to which the [AHG] shall submit its report, including a legally binding instrument..." (Protocol). Statements late last year, as well as during this session, showed that there are different nuances in how countries view the mandate.

The European Union, holding the strictest interpretation of the mandate, considered it a "mandatory" deadline.1 Russia urged all participants to do everything possible for the full implementation of the mandate, saying it remains "committed to reaching that goal."2 India said the Review Conference, "whether deadline or a target, increases the awareness of [the AHG's] efforts".3 The United States would "exert every reasonable effort" to complete the negotiations prior to the Review Conference. However, time pressure, which was an important element in any negotiations, could only be overcome when major disputes had either "been settled or defined in such away that successful solutions are visible. To set hard and fast deadlines prior to that point invites failure". The United States was ready to "stay at the job until it is done right".4

The statements during the opening day of this session confirmed these differing perceptions. China said that although it remained committed to completing the negotiations "with the envisaged timeline", it should be "noted that we are not supposed to negotiate for the sake of negotiating".5 Pakistan was ready to "devote extra time to the negotiations", implying that it was ready to take the negotiation beyond the deadline.6 Libya felt that the AHG should not bind itself to deadlines that it might fail to meet.7 The Netherlands disagreed, saying that some delegations appeared to "play with the concept of deadlines as if it was something we can freely decide upon", and stressing that the AHG had a mandate from a higher power.8

Regardless of whether countries consider the Review Conference as a deadline or only a target date, and irrespective of the technicalities concerning the mandate, it is clear that after five years of AHG negotiations, missing the date could plunge the whole process into a crisis. Italy believed that, being the only on-going real disarmament negotiations, such a failure, "open or disguised", would send " a very negative and worrying signal to the international community" on its commitment to rid the world of weapons of mass destruction.9 With this daunting thought in the back of minds, great attention has been given to the question of negotiation methods.

Calls For and Against a 'Vision Text'

As mentioned in the introduction, with such little negotiating time left this year, Ambassador Tibor Tóth of Hungary, the Chair of the Group, is under pressure to produce a so-called 'vision text' - his own proposal for what the Protocol should look like. While many feel that introducing a comprehensive text is now essential, the heated exchanges during the first day of the talks showed that some hold a seemingly opposite position.

Tóth opened the twenty-second session by stating that the AHG needed to have a collective understanding of how, and through which mechanisms, it could complete negotiations before the Fifth BWC Review Conference. He believed that the main working procedures used so far would not by themselves allow the AHG to meet this objective. Tóth reminded delegations that concluding the task would require not only finalising the text, but also drafting the AHG's report, considering issues relating to the Preparatory Committee (PrepCom) for the future Organisation, as well as convening a Special Conference to adopt the report.

Tóth said he would continue with his bilateral consultations with delegations, adding that he had distributed a new set of written elements - the 'building blocks' - reflecting the results of his discussions, further to the first set he had distributed in the November session. Turning to what he expected of the delegations, Tóth said they could no longer expect other delegations to move while they themselves stood still - everyone would have to shift from long-held positions towards a middle ground. He encouraged delegations to consider the simple consequence of continuing work as before: the AHG would not be able to complete its task. Tóth stressed that the task ahead was not that of having a new treaty, but of strengthening existing obligations and preventing the use of deliberate disease. He asked all delegations "to deliver on their promises of cooperation and compromise".10

Peter Goosen took the floor to say that South Africa believed that the currently adopted method of negotiation had taken the AHG as far as it could go. Believing that time was "not only short but... of the essence", Goosen argued that the moment had arrived for a new methodology, and for the Chair to introduce his "best guestimate" of the compromises that should be considered as the basis for concluding the negotiations: a complete vision text in which delegations could see the full picture. Because he believed this was the only way to create the necessary new momentum and meet the AHG's mandate. Goosen asked Tóth to distribute the text "as soon as possible before the end" of this session.11 New Zealand associated itself with South Africa's call for a vision text, as did Norway and the Netherlands. Italy welcomed Tóth's 'building blocks' and hoped that they be followed by a consolidated text "from which to take the final leap".12

In a more moderate call for a vision text, Ambassador Leslie Luck, who is Friend of the Chair on Legal Issues, said Australia also looked forward to seeing the full picture, but believed the timing for the vision text was best judged by Tóth. Supporting Tóth, Luck said he also believed the AHG's process and dynamic was starting to get "just a little stale and outlive its purpose" and that Australia was ready for any kind of negotiation style that suited the Group.13

In an angry response to these requests, and perhaps particularly the call by South Africa, a fellow-member of the Non-Aligned Movement (NAM), Ambassador Ali Ashgar Soltanieh of the Islamic Republic of Iran argued that the introduction of the vision text would "endanger the friendly and cooperative atmosphere" of the negotiations. He warned that such calls would only provoke Iran, and possibly others too, to work on and introduce their own 'clean texts', reflecting their respective views, as had happened during the negotiations on the Chemical Weapons Convention (CWC). He stressed that Iran had welcomed the modifications in the negotiation methodology so far, namely the bilateral consultations and the resulting building block papers by Tóth, regarding them as useful. However, this should not be interpreted to mean that Iran accepted that this would lead to a clean text for this session.14

Ambassador Hu Xiaodi of China felt that, although the negotiations were now making "steady progress", great efforts were needed to complete them in time. Commenting on the Group's working methods, Hu felt that the informal consultations and compromise proposals were a part of the "logical development" of multilateral negotiations. Nevertheless, the AHG now needed to "look squarely" at the facts: there were divergent views on major key elements of the Protocol. Although informal consultations and textual fixes had their merits, the major issues called for political solutions. Indicating that China was not ready for a vision text, Hu insisted that such solutions could only be achieved by focussing on the rolling text.15

Pakistan believed that current working methods had served the AHG well, and would continue to do so. Any departures from textual negotiations based on the rolling text would need to remain informal. It was not the time to look at "texts that were sent from heaven", as this would only lead to problems.16 Libya believed that trying to reach "half solutions" would not enable the Group to produce an instrument that served the interests of all member states.17

Russia said that while it held strong to the task of establishing a monitoring system for the BWC, it was also important that the Protocol was a balanced document, arrived at through consensus. Thus, Russia was ready to examine Tóth's 'building blocks'.18

Towards the middle of the session, the European Union made an appeal to Tóth to deliver a vision text. Ambassador Henrik Salander of Sweden said it was only through the chair's text that the negotiations could be brought to a successful conclusion. The EU was convinced that this input was needed as soon as possible.19 Two EU member states, Finland and Spain, repeated this call towards the end of the session.

Whether the United States is ready for a vision text is unclear. Some observers noted that the US delegation neither spoke for nor against such a text in this session. This was attributed to the policy review underway by the new administration. There is some nervousness about whether this review can be completed in time to allow the US delegation to act on the basis of clear instructions during the final weeks of negotiations. There is also some concern about the position to be taken by the new Republican administration.

Missing Pieces

Tóth has now written and distributed to delegations several sets of his 'building blocks'. After the twenty-second session, the distributed blocks cover the whole Protocol except for the preamble, measures to strengthen Article III (of the Convention), the entry-into-force article and appendices. Although some of the blocks do not cover all articles in their entirety, leaving out some of the most contentious issues such as transfers/export controls, the whole set of blocks are said to cover more than 85% of the Protocol. Tóth began distributing the blocks during the November session and has received feedback on them (although not, it is understood, from all delegations, as some do not want to give the impression that they accept formal negotiations based upon them), allowing him to revise and issue new versions along the way. The building blocks have provided Tóth with a way to test the waters in preparation for the proposal for a whole Protocol.

The AHG's report from this session "reaffirmed that the Rolling Text is the only basis for negotiations", as in the past.20 At the same time, there has been an increasing amount of informal consultation. Tóth said the results of this session were mixed. On the surface, the results had been "very modest", with only three dozens of brackets removed. Such statistical data, however, was misleading, as much "invisible" progress had been made in the sense of preparing the ground for further advances through informal consultations by the Friends of the Chair and Facilitators. In addition, Tóth said he had himself held more than fifty consultations with delegations during the two weeks.

Reflecting on the difficulties inherent in the talks, Tóth believed the reason there had been no quantifiable progress in the last four sessions was that the issues in the Protocol were so interrelated. Thus, there was a need for "a more holistic approach". He had tried, by distributing his building blocks, to move the AHG forward. Referring to the blocks as "pieces of Swiss cheese", Tóth said that while delegations had read them with great interest, they were now more interested in what they did not contain - the holes in the cheese. The AHG needed "a more composite set of proposals". To emphasise that he had listened to the concerns of Iran, China, and others who insist on retaining the rolling text as the basis of the negotiations, Tóth said no delegation was ready to endanger the capital that had accumulated since the summer of 1997 when the rolling text was first introduced. Thus, in the 'more composite set of proposals', he intended to use clean elements from the rolling text as well as consensus - or at least close to consensus - elements from the informal consultations by the Friends of the Chair, as well as their ideas for resolving the more complicated issues.21

No one seemed to object to Tóth's assessment or intentions, and it is believed that during this session he may have succeeded in softening the stance of some of those countries who have been more reluctant to see a vision text by stressing that he would not impose his 'more composite set of proposals' on anyone. One sign of such success is that Iran said towards the end of the session it would "welcome [Tóth's] proposals in the next session" on the unresolved issues.22 This is not to say that all concerns have been allayed. Behind the reluctance by some to accept the idea of a vision text is that there remains a fear that it could overshadow the rolling text - in particular its 'clean', agreed parts - as well as a concern over how much negotiating margin a vision text would allow. At the same time, as one observer said, it will be crucial, given the limited negotiating time left, to avoid a situation where the vision text or 'more composite set of proposals' turns into another bracketed rolling text. Whether the available time will be sufficient to deal with some of the bigger differences of view will only be seen after Tóth has produced and distributed his proposal.

Challenges Ahead: Transfers/Export Controls

One of the major "holes in the cheese" is the question of technology transfers and export controls, which has been a bone of contention since negotiations began. The question centres on Articles III and X of the Convention. Many developing countries have underlined the importance of Article X, under which states parties have the right to the "fullest possible exchange of equipment, materials and scientific and technological information" related to the use of biological agents and toxins for peaceful purposes. The Article also stipulates that the Convention must be implemented "in a manner designed to avoid hampering the economic and technological development" of states parties. Conversely, the developed world, and in particular the members of the Australia Group - an informal grouping of thirty (primarily western) countries who harmonise their national export control policies - has tended to underline the need for export control policies in fulfilment of the obligation set out in Article III "not to transfer to any recipient whatsoever, directly or indirectly, and not 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 specified in Article I of the Convention".

The NAM has stated that, while it stresses the importance of Article III, its "provisions should not be used to impose restrictions and/or limitations on transfers for peaceful purposes". The NAM further suggests that proliferation concerns "would be best addressed through multilaterally negotiated, non-discriminatory and legally binding mechanisms...incorporated into the future Protocol". The NAM also underlines the need for national export control mechanisms in accordance with Article III, and has proposed guidelines on transfers, declarations on denial of transfers, guidelines to promote the harmonisation of national, regional and other regulatory mechanisms, transparency and confidence-building measures and review mechanisms.23

An important element missing from the 'building blocks' is the transfer/export controls section in the compliance measures article (Article III, section F). Britain, which submitted a working paper defending common approaches (an obvious reference to the Australia Group) on export controls in the July-August session last year, introduced a second paper on the topic in this session together with Australia, Austria, Belgium, Canada, Germany, Italy and Sweden.24 The working paper explains how the eight countries view the highly controversial section of the rolling text that deals with measures to strengthen the implementation of Article III. The paper is a clear (political) response to a proposal tabled by Iran in the November session on a mechanism by which countries could settle their disputes over denied transfers.25 Under the Iranian proposal - co-sponsored by China, Cuba, India, Indonesia, Libya, Mexico, Pakistan and Sri Lanka - states parties would have to abide by the recommendations or rulings of a dispute settlement panel made up of governmental and non-governmental experts.

The new British paper states that "the key requirement...should be to provide a common basis for all states parties to strengthen the effective implementation of their non-proliferation obligations under the BWC". It takes the position that the Protocol should therefore contain provisions on the establishment of export controls and a report to the Technical Secretariat (of the future Organisation) on such measures, and on national regulations governing transfers of dual-use items, including end-use certificates and assessment of the non-proliferation credentials of the potential recipient. Also included should be provisions on increased transparency with respect to transferred dual-use items through annual reporting, bilateral consultations, and post-shipment verification. In the event of suspected transfer violations, the paper proposes strictly bilateral consultations, and provisions containing suggestions as to what kind of information should be provided in these consultations. Finally, the section should encourage countries to take additional export control measures beyond those specified in the Protocol.

Unequivocally rejecting the November proposal by Iran and others, the British paper reasons that "since the BWC does not create any obligations whatsoever to grant a requested transfer, no provisions on the denial of transfers, or on any consultations or review are needed in the Protocol". The paper further insists that under "no circumstances" should states parties be required or obliged to make a transfer, and argues that no multilateral organisation should be asked to "ever address, consider, decide upon, review, or overturn any decision taken by a state party that a potential transfer is inconsistent" with its non-proliferation obligations undertaken as a national responsibility under the BWC.25

Given these two apparently irreconcilable positions - one which would grant power in cases of a denied transfer request to a body associated with the Protocol, and the other adamant that such power should remain with individual member states - finding agreement on this highly controversial issue will be a major challenge. Given the lack of middle-ground proposals, the Chair will have to do some very careful thinking on how to approach the matter in his future proposals.

Other outstanding issues concern reservations, the formula for the Protocol's entry into force, declarations, visits, and responses to alleged non-compliance.

Views diverge widely on whether reservations should be permitted. It is understood that Norway, the Netherlands, New Zealand and South Africa, among others, feel there should be no reservations with respect to any part of the Protocol, whereas others, such as the United States, would like to secure the possibility of allowing reservations to the annexes or appendices, or even to the Articles themselves.

As for the entry-into-force formula, Ambassador Leslie Luck of Australia, Friend of the Chair on Legal Issues, has been conducting intense consultations. The most popular proposal being floated by delegations is for a simple numerical threshold, although it is not yet clear how many ratifications would be required (65 or 75). Some countries, including Germany, would prefer ratification by the BWC depositary states (Britain, Russia and the United States) to be stipulated as an additional requirement. Iran, on the other hand, is known to have compiled a list of 52 countries, covering (bio)technologically developed countries, as well as countries in the Middle East, whose ratification would be required before the Protocol took effect. A proposal for a geographical formula, partly in response to the Iranian proposal, has been circulated whereby a certain number of states from each geographical area would be required. This compromise suggestion, however, does not seem to have won much support.

With regard to declarations, the early cut-off date for the required disclosure of past offensive BW programmes has yet to be agreed. The dates proposed are 1925 (Geneva Protocol), 1946 (after World War II), and 1975 (BWC entry-into-force). In addition to this question, the whole 'package' of declarations to be dealt with by the Protocol - and in particular the vexed question of to what extent bio-defence programmes should be declared - remains under discussion. The United States, which has a large bio-defence programme, wants to limit this due to security reasons. However, some others have argued that due to the thin line between prohibited and permitted activities, especially in the case of bio-defence, everything should be declared.

The frequent, heated discussions last year on visits (inspections by another name) seem to have calmed down a little, although there is still disagreement with respect to randomly-selected visits. While such visits are now generally accepted as a valid concept, the question of which facilities they should apply to remains in dispute. In addition to this, delegations disagree about clarification visits and whether they should be mandatory or just voluntary. More specifically, delegations in the Western Group and the NAM disagree whether the Executive Council can, by a majority vote, decide to initiate a clarification visit in a state party that has declined to volunteer for such a procedure. Western delegations support granting the Council this power, whereas the NAM is in favour of a voluntary basis for all clarification visits. Nor is there agreement on whether clarification visits should apply only to declared facilities, or additionally to undeclared facilities which some states may suspect should have been declared.

With regard to responses to alleged non-compliance, delegations are divided between a 'red light' and a 'green light' procedure by which the Executive Council could initiate an investigation. Under the 'red light' procedure, an investigation would automatically take place unless the Executive Council voted against. Many western delegations favour this mechanism. Conversely, the 'green light' procedure, which is supported by most NAM delegations, would require a positive majority vote before an investigation could be launched, thus raising the political threshold for such action.

Conclusion

As many delegations said in their statements during this session, the BWC Protocol negotiations are at a critical juncture, with only seven weeks of negotiations left before the Fifth Review Conference. Whether delegations consider the Review Conference as a deadline or target date, they are all aware that the stakes are high. Missing the date could potentially unravel the whole process. The key question some are asking is whether there would be a strong enough political push to continue with the process if negotiations could not be concluded by the Review Conference? As has been pointed out, with the AHG's work constituting the only on-going multilateral disarmament negotiations, a failure to conclude the work as mandated could have a wider negative impact, eroding confidence in multilateral disarmament and non-proliferation processes and agreements. Although the task ahead is a major challenge, there is a feeling that it remains doable, provided there is concerted and determined political will. Just how doable, will be seen in the coming April session.

BWC AHG Dates for 2001

Twenty-second session, February 12-23;

Twenty-third session, April 23-May 11;

Twenty-fourth session, July 23-August 17.

The BWC Review Conference will take place from November 19-December 7. The Preparatory Commission to the Conference is scheduled for April 25-27.

Notes and References

1. Hubert de la Fortelle, Ambassador of France, speaking on behalf of the EU, BWC AHG, November 20, 2000.

2. Vasily Sidorov, Ambassador of Russia, BWC AHG, November 27, 2000.

3. Rakesh Sood, Ambassador of India, BWC AHG, December 8, 2000.

4. Donald Mahley, Ambassador of the United States, BWC AHG, November 23, 2000.

5. Hu Xiaodi, Ambassador of China, BWC AHG, February 12, 2001.

6. Malik Azhar Ellahi, Counsellor at the Permanent Representation of Pakistan to the CD, February 12, 2001.

7. Member of the Libyan delegation, BWC AHG, February 12, 2001.

8. Chris Sanders, Ambassador of the Netherlands, BWC AHG, February 12, 2001.

9. Mario Maiolini, Ambassador of Italy, BWC AHG, February 12, 2001.

10. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, BWC AHG, February 12, 2001.

11. Peter Goosen, Chief-Director of the Non-Proliferation and Disarmament Section at the Department of Foreign Affairs of South Africa, BWC AHG, February 12, 2001.

12. Mario Maiolini, Ambassador of Italy, BWC AHG, February 12, 2001.

13. Leslie Luck, Ambassador of Australia, BWC AHG, February 12, 2001.

14. Ali Ashgar Soltanieh, Ambassador of Iran, BWC AHG, February 12, 2001.

15. Hu Xiaodi, Ambassador of China, BWC AHG, February 12, 2001.

16. Malik Azhar Ellahi, Counsellor at the Permanent Representation of Pakistan to the CD, February 12, 2001.

17. Member of the Libyan delegation, BWC AHG, February 12, 2001.

18. A member of the Russian delegation, BWC AHG, February 12, 2001.

19. Henrik Salander, Ambassador of Sweden, speaking on behalf of the EU, BWC AHG, February 19, 2001.

20. BWC/AD HOC GROUP/L.117. February 23, 2001.

21. Tibor Tóth, Ambassador of Hungary and Chair of the AHG, BWC AHG, February 23, 2001.

22. Ali Ashgar Soltanieh, Ambassador of Iran, BWC AHG, February 22, 2001.

23. Statement on Behalf of the Group of the Non-Aligned Movement and Other States, BWC/AD HOC GROUP/WP.407. October 8, 1999.

24. BWC/ AD HOC GROUP/WP.433.

25. BWC/AD HOC GROUP/WP.432 and WP.432/Add.1. November 23 and December 4, 2000.

26. BWC/ AD HOC GROUP/WP.433.

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

© 2001 The Acronym Institute.