Towards the BWC Review Conference: Diplomacy Still in the Doldrums

1 May 2006

Nicholas A. Sims

The Meeting of States Parties to the 1972 Biological and Toxin Weapons Convention (BWC[1]) held in Geneva December 5-9, 2005 was almost the last chance for governments to set out their views on the Sixth Review Conference, which will take place within the three weeks from November 20 to December 8, 2006. The scheduled topic for the meeting was supposed to be codes of conduct for scientists, but only the United States adhered strictly to this. Most general statements used the opportunity to address the future of the Convention at the end of the 'new process' of 2003-2005. Directly or indirectly they began to set the scene for the Sixth Review Conference.[2]

Among the key questions for the Review Conference are: whether to institute a second intersessional work programme; whether to hold Annual Meetings of States Parties; establishing a scientific advisory body and implementation support; and developing a consolidation agenda and action plans for strengthening the BWC. Though there are fears that high levels of bilateral hostility between the United States and Iran may block attempts to get agreement, constructive proposals and approaches are also in evidence.

NAM General Statement

The statement from the Group of BWC States Parties who are members of the Non-Aligned Movement (NAM), was delivered by Malaysia on December 5. It picked up the pieces from the BWC's famously 'lost decade' of 1991-2001 - "not so much an evolution as an attempted revolution"[3] - and gave a good indication of the line it would expect its members to follow in 2006:

"The Group further recognises the particular importance of strengthening the Convention through multilateral negotiations for a legally binding Protocol to the Convention...The Group stresses the particular importance of all States Parties to pursue the objectives that were set forth by the Fourth Review Conference in 1996, as we strongly believe that the only sustainable method of strengthening the Convention is through multilateral negotiations aimed at concluding a non-discriminatory legally binding agreement, dealing with all the Articles of the Convention in a balanced and comprehensive manner.

"The Group is deeply disappointed at the inability that has been demonstrated in the endeavours of the States Parties of the BWC to successfully undertake initiatives to strengthen the implementation of the Convention. We further regret the limited nature of the decision that was taken during the resumed session of the Fifth Review Conference in November 2002. We are also disappointed that the opportunity to strengthen the Convention was foregone and that limited work, which at best only had the potential of enhancing the implementation of certain aspects of the Convention, was all that could be achieved despite our best endeavours. The Group reiterates that the BWC forms a composite whole and that, while it is possible to address related issues separately, it is necessary for all the inter-linked elements of the Convention to be dealt with in a balanced and comprehensive manner, whether they relate to regulation, compliance or promotion."[4]

As their statement showed, the NAM were defensive and reactive. Notwithstanding that some NAM members had been markedly unenthusiastic about bringing negotiations on a strengthening Protocol to an early conclusion,[5] they continued to be resentful of the United States' dramatic veto on those negotiations in July 2001 and suspicious of its attitude to the BWC ever since. In December 2005 that stance appeared well entrenched, and the United States has given the NAM little reason to reconsider. Herein lies the most evident threat to the Conference ever reaching agreement on its Final Declaration.

However unexceptionable the NAM propositions may appear at first sight, in the hands of hard-line delegations - most obviously Iran - they could be used in December 2006 to block one initiative after another as partial or unbalanced, to antagonise still further the United States and to stall progress towards agreed language for the Final Declaration. High tension between the United States and Iran during 2006 makes this scenario all the more plausible. If they wish, their delegations will be fully capable of leading the Conference straight into deadlock.

Even though the BWC is not the most central issue in their acrimonious relationship, it will be all too easy for each to blame the other for the debilitated condition of the treaty. Fortunately there are other delegations which can be relied upon to put the BWC first and prevent bilateral hostility monopolising the proceedings. It is not only NGOs that feel strongly that the diplomacy of biological disarmament deserves better. But it will take hard work to overcome this threat to the Conference.

'Positive' Canadian and EU Statements

On the opening day, the most positive statements about outcomes to be sought from the Sixth Review Conference came from Ambassador Paul Meyer (Canada) and Fiona Paterson (UK), the latter delivering the European Union (EU) statement, endorsed by 36 European states,[6] as the UK then held the EU Presidency.

Canada saw the Review Conference as "a major opportunity to take a fresh look at our progress to date and to address areas of deficiency." It encouraged States Parties "to start examining possibilities for Review Conference 'deliverables'", and rehearsed Canada's own suggestions, while emphasising that additional ideas from others would be welcome as "the types of practical steps that the membership should consider adopting to reinforce the strength and authority of this Treaty which bans a deadly class of WMD".

Canada also advocated: "the formulation of action plans for BTWC universalisation and national legislation; the further elaboration of transparency and confidence-building measures; continued annual BTWC meetings; the establishment of a BTWC Scientific Advisory Body; and provision for BTWC implementation support."[7]

The EU statement[8] was remarkable for the very welcome priority it gave to biological disarmament in its categorisation of the BWC: "The Convention remains the fundamental legal and normative foundation of our individual and collective obligation to biological disarmament, our efforts to prevent the proliferation of biological and toxin weapons, and the means to counter the threat of biological agents and toxins being developed as weapons. The EU remains committed to developing measures to verify compliance with the BTWC."

Its key sentences on the Sixth Review Conference read: "Without losing sight of our long-term objectives for the Convention" [presumably a discreet reference back to the verification sentence] "the EU believes that the Review Conference must contribute actively to continued enhancement of the implementation of the BTWC and that our efforts should focus on specific, feasible and practical enhancements to strengthen the Convention and its implementation."

The EU also reiterated "that States Parties to the BTWC must be fully alert to the challenges posed by biological and toxin weapons and their potential use. We cannot shirk our responsibilities and we must address the threat by whatever means we can. The Review Conference in 2006 is a good opportunity to take this important work forward."

A second intersessional work programme

Indicating one specific way forward, the EU made agreement on a second intersessional work programme a major goal for the Sixth Review Conference.

This involves putting the most positive spin possible on the experience of 2003-2005: "We believe that the three-year work programme has been very successful. The agreed topics were directly relevant to States Parties' obligations under the BTWC. And we have achieved a wide degree of information exchange on the full list of topics. States Parties now have a better understanding of the range of approaches that have been taken, and can be taken, with a view to implementing fully our obligations under the Convention. We have all had an opportunity to learn from these meetings and to improve national approaches on the topics where appropriate."

This rosy view is consistent with the optimistic line taken by the UK and like-minded governments since 2002. Relieved that the United States had at least relented sufficiently to allow some multilateral activity between Review Conferences, they were determined to make the most of what was allowed. But it ignores the tight constraints placed by the United States in 2002 on the content of the agenda, and on what States Parties would be allowed to do with it. Among these brakes on the 'new process' were:

  • the narrow selection of topics[9] (omitting several of at least equally direct relevance to the Convention, like verification, compliance, biodefence research, dual use, Confidence-Building Measures (CBMs), and most if not all aspects of Article V and Article X );
  • the disjointed structure of the 'work programme', which in fact consisted of three deliberately disconnected years; and
  • the limited ability of successive Chairs[10] to persuade their respective Meetings of States Parties to add value to the documentation received from their preceding Meetings of Experts by developing their analyses and syntheses into the substantive final documents which each of them, in different ways, sought to achieve.[11]

Even given the absolute ban on negotiation, it should have been possible to use the solid staff work of the Chairs and secretariat to agree more significant final documents each December, to demonstrate that the stated criteria of "common understanding and effective action" had been fulfilled.[12] But with severe limitations built into the process, and so little allowed, it is not surprising that despite the three Chairs' best efforts their achievements were modest.

If the EU has its way, the 2003-2005 'new process' looks like being continued into a second intersessional sequence: "...building on the success and the lessons of the current work programme, we believe that there should be a further intersessional work programme and are currently considering the topics that could usefully be covered in such a programme."[13]

Work on selecting topics began under the UK presidency of the EU in 2005 and continues in 2006 under the auspices of Austria and Finland. Austria's EU Presidency coordinator for the BWC was seen in its delegation to the December Meeting of States Parties. Finland, too, has a creditable long-term record of taking the Review Conferences seriously (and also, in recent years, the NGO 'friends of the Convention').

The best thing that could be done with the 'new process' would be to supersede it with Annual Meetings, unrestricted in their coverage of the Convention as a whole, together with implementation support and a scientific advisory mechanism. But if Annual Meetings of that kind are not allowed, a few modest improvements might help to 'upgrade' the second intersessional work programme.

Even the optimistic EU statement quoted above recognised that there were "lessons" to be learned from the experience of 2003-2005. Here are some:

  • specific topics should be replaced by broader themes, so that a distinct aspect of the Convention can be considered in its entirety;
  • over the intersessional period 2007-2010, whether there are eight topics or (preferably) four themes, the aim should be to cover the whole of the Convention systematically, preferably with nothing ruled off-limits;
  • the progression each year from Meeting of Experts to Meeting of States Parties, and the proceedings of the States Parties' meetings, should be less tentative in terms of developing analysis and synthesis, with a view to securing substantive final-document outcomes which match the stated criteria of "common understanding and effective action";
  • the three weeks allocated each year could, with some minor changes in organisation, be put to better use;
  • follow-up from year to year should be introduced (there was no way of reporting to the Meeting of States Parties in 2005 on progress in biosecurity, penal legislation or other national implementation measures since 2003, or on follow-up to the 2004 topics, because the 'new process' required each year's work to be strictly self-contained, so no momentum could build up);
  • time should be made available within the three weeks allocated each year for progress reports to be made on the Action Plans on universality and on national implementation, and on the 'consolidation agenda', together with a scientific advisory report, if these targets for the Sixth Review Conference (as outlined below) are achieved.

Action Plans and Consolidation Agenda

This section proposes two Action Plans and a Consolidation Agenda as "specific, feasible and practical enhancements to strengthen the Convention and its implementation" which the Sixth Review Conference ought to be able to adopt. They deliberately build on foundations already laid by consensus, and, avoiding contentious areas of BWC diplomacy or interpretation, encourage instead the completion of longstanding, politically binding commitments which many, but not all, States Parties have already fulfilled.

Action Plan on National Implementation

BWC States Parties have been subject to national implementation obligations ever since the Convention entered into force for them, because Article IV requires that each one of them "shall, in accordance with its constitutional processes, take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere."

The First Review Conference, as long ago as March 21, 1980, exhorted everyone to take such measures "immediately".[14] An Action Plan on National Implementation could put on a systematic and continuous basis, under the authority of the States Parties as a whole, the hitherto spasmodic attempts to get more governments to take this obligation seriously. It would need to take into account:

  • the agreed understandings concerning Article IV, including the encouragement of sharing texts through the United Nations for purposes of consultation (since 1980), and of notifying the status of legislation as part of the CBM programme (since 1991), which previous Review Conferences recorded between 1980 and 1996 in "successive layers of consensually agreed language";[15]
  • an increasing emphasis on penal legislation and on the closing of any jurisdictional loopholes;[16] and
  • an impressive body of work by VERTIC both to establish the current state of affairs worldwide[17] and, together with ICRC lawyers, to develop capacity-building and technical assistance tools including draft model legislation to suit the diverse legal traditions within which Article IV has to be fulfilled.[18]

The Chemical Weapons Convention (CWC) experience is instructive. The Organisation for the Prohibition of Chemical Weapons (OPCW) has run an Action Plan on CWC Article VII obligations since 2003.[19] Its origins lie in the CWC's First Review Conference although it takes its authority from the Conference of the States Parties in regular session later the same year. Legal advisory staff are tasked with implementing the Action Plan, and progress reports are made to the CWC States Parties by the Technical Secretariat of the OPCW through the Executive Council.

The BWC, notoriously, lacks a comparable structure of permanent institutions. That does not excuse the States Parties from finding ways and means to get a comparable Action Plan launched for BWC Article IV. If it impels the States Parties to think seriously about support structures for the BWC, such as an Annual Meeting and provision for implementation support, so much the better.

Two other things have already come out of CWC experience which may be relevant to the BWC. One is that many governments appreciate technical assistance under the Action Plan: no fewer than 78 "received legislative assistance in the form of feedback on their draft legislation or on their first drafts, or with the whole process of drafting the legislation". The OPCW Technical Secretariat also conducted 41 technical assistance visits (TAVs) between the inception of the Plan and October 17, 2005 and also supported 11 bilateral TAVs that were organised directly between States Parties.[20]

The other is that there remain wide disparities between the percentages of CWC States Parties which have adopted legislative and administrative measures to implement that Convention, and under Article VII.5 have informed the OPCW Technical Secretariat of the fact (60%, at October 17, 2005), those which have submitted the texts of the measures they have taken (48%), and those which have "adopted legislation that covers all key requirements of the Convention" (34%).[21]

The 'adequacy gap' between the 60% which have taken some measures and the 34% which have taken sufficient measures to cover all key CWC requirements was already evident in 2002 when the equivalent figures were 48% and 27%.[22] That it was still just as wide three years later is disturbing. It indicates a predictable need for BWC States Parties to exercise collective scrutiny, and to target technical assistance, with a view not just to penal legislation but to comprehensive legislation. Article IV of the BWC sets a stringent criterion ("any necessary measures to prohibit and prevent"), which should be upheld in the action plan on national implementation.

Action Plan on Universality

BWC States Parties have been committed since their Third Review Conference in 1991 to seeking universal adherence to the Convention.[23] Yet here again diplomatic demarches to signatory-only states (16 of the early signatories from 1972-73 have still not ratified) and non-signatories (about 20) have been spasmodic rather than systematic. So there is also a strong case for an Action Plan on Universality.

Again there is useful experience to be gained from the CWC's comparable Action Plan since 2003, such as the close cooperation the OPCW Technical Secretariat has maintained with regional organisations including the African Union and the Organisation of American States, and with the African Group of CWC States Parties at The Hague.[24]

In a first stage a BWC Action Plan on Universality might aim to close the gap between the BWC and CWC rosters (currently 155 against 175): if all those states which have accepted the CWC would also join the BWC, the latter would be much closer to universality. The Action Plan in a second stage could then concentrate on the deliberate 'hold-outs' from both Conventions and similarly tough cases.

Some States Parties have been active in the quest for universality, persuading outsiders to join. Others have not acted on this 1991 commitment. Even among the most active the effort has been discontinuous and unsystematic. With the benefits of CWC experience, it is high time that it became continuous, systematic and undertaken under the auspices of the States Parties as a collectivity and with their full support.[25]

Consolidation Agenda

A Consolidation Agenda would usefully remind BWC States Parties of politically binding commitments they undertook to get their treaty status into conformity with their BWC obligations and to build one another's confidence.

The oldest component of a consolidation agenda derives from the exhortation States Parties issued to one another on March 21, 1980, in the Article VIII section of the Final Declaration of the First Review Conference. In this, they pledged to comply strictly with the provisions of the Geneva Protocol of June 17, 1925 and, if not already party to it, "to ratify or accede to it at the earliest possible date"[emphasis added].[26] Yet a quarter of a century after that exhortation was issued, no fewer than 30 of the BWC States Parties were still to be found outside the Protocol altogether: one (El Salvador) had yet to ratify its 1925 signature and 29 others had yet to accede.

Some 20 others are party to the Geneva Protocol but have yet to regularise their treaty status and render it consistent with their BWC obligations by withdrawing reservations to the Protocol that purport to reserve a right of retaliation with bacteriological (as well as chemical) methods of warfare.

Withdrawal of reservations became a politically binding commitment, a collective exhortation by the BWC States Parties, tentatively at the Third Review Conference in 1991[27] and unequivocally at the Fourth in 1996.[28] Significantly its importance was reinforced in the UN Secretary-General's official message to the Meeting of States Parties at its opening session on 5 December 2005.[29] It was given further impetus the same day in a joint declaration of the French and Swiss governments recording their Geneva seminar to commemorate the eightieth anniversary of the 1925 Protocol.[30]

A consolidation agenda should both highlight the actions of BWC States Parties in ratifying or acceding to the 1925 Protocol or (if already party) in withdrawing reservations, and reaffirm the politically binding commitments on the remaining states which have yet to take the necessary action. Still seeking conformity in treaty status, it should also draw attention to BWC Article IX, which since the conclusion of the CWC has been interpreted as mandating a politically binding commitment on BWC States Parties to become parties to the CWC as well.[31] Most have, but not all.

Last but not least, it could embrace the CBM programme inaugurated in 1986 and enhanced and expanded in 1991. Consolidation of politically binding commitments already agreed must include providing the United Nations by April 15 each year with declarations under each of the CBMs (including the user-friendly formats with 'nothing to declare' and 'no change' options which have been available since 1991). More needs to be done to improve the usefulness of the CBM programme, but participation by all States Parties is the most basic goal for a consolidation agenda to include.[32]

The idea of a consolidation agenda has much in common with the action plans for national implementation and universality. Like them, it calls attention to longstanding commitments which the States Parties adopted by consensus, in the politically binding context of their Review Conference Final Declarations, and which challenge them to show that they take the BWC seriously.

The consolidation agenda aims to provide the BWC with a firmer platform from which to move forward.[33] That platform would see all BWC States Parties having joined also the 1925 Protocol, without reservation, and the CWC, so that their absolute renunciation of chemical and biological weapons and warfare was internally consistent and logically unequivocal. It would also see them building one another's confidence through reporting annually on each element in the agreed CBM programme.

Annual Meetings, Implementation Support and Scientific Advice

One of the key decisions facing the Sixth Review Conference will be whether to institute an Annual Meeting of States Parties. To do so would be a natural development from the topic-limited Meetings of Experts and of States Parties which took place in 2003-2005.

Governments have got into the habit of devoting three weeks a year to BWC discussions in a multilateral format. The rules of procedure of the BWC Review Conferences have been borrowed and adapted as necessary. Several times it has been observed that statements made in the Meeting of States Parties and even the preceding Meeting of Experts have ranged wider than the official topic, as if governments felt the need to take stock of the state of the Convention each year and register their policy positions.[34]

A good example is Brazil, with its insistence (repeated at every opportunity) on the Convention being an integrated group of fifteen Articles which must not be subjected to selective emphasis, because all are equally valid as parts of the whole.[35] Some have even taken to using the title 'Annual Meeting' or even, in a few cases, 'Annual Conference' in the titles of their national statements, although more have not.

There is a strong case for an Annual Meeting of States Parties, perhaps using themes to organise the agenda, but not narrowly restricted topics as in 2003-2005. Most importantly, the Annual Meeting would be able to address current problems, receive progress reports on the action plans and the consolidation agenda, and spend a serious proportion of its time assessing relevant developments in science and technology.[36] It would enable the States Parties to do whatever was needed to nurture and strengthen the treaty, of which they are simultaneously the regulators and the beneficiaries, preferably with advice and participation from NGO and other civil society constituencies, nationally and internationally.

Canada, which has been foremost in proposing an Annual Meeting, envisages two weeks' duration for this event each year. The 2003-2005 differentiation between Meetings of Experts (two weeks) and of States Parties (one week) would be removed. A hard-working, well-organised Annual Meeting ought to be able to deal with substantive business and achieve realistic outcomes in two weeks.

Two other innovations are proposed by Canada:[37] provision for implementation support, and a Scientific Advisory Body. Implementation Support could be built on the present arrangement, under which the UN Department for Disarmament Affairs (DDA) provides a small staff complement for BWC meetings. It would make more likely the success of the action plans and help implement the consolidation agenda, including the added-value element of processing CBM declarations each year. Staffing based on DDA would be modest in numbers but high in quality and rich in experience.

It ought to be possible to persuade the United States and other doubters that this would not be a mini-OPBW smuggled in by the back door. It would take its authority and implementation tasks directly from the Review Conference and, between Review Conferences, from the Annual Meeting of States Parties. Logically it should be funded by all States Parties, pro-rated from the Review Conference budget. If that is not possible then a substitute might be an Implementation Support Unit funded by particular States Parties on the model of the 1997 Ottawa Convention which banned anti-personnel landmines.[38] Though not ideal, such a Unit would be much better than nothing.

A Scientific Advisory Body is perhaps the most widely supported of all proposals for alleviating the BWC's notorious institutional deficit. Under the name 'Scientific Advisory Panel' the concept was supported by the UK in 2002.[39]

Five years is too long an interval over which to let new developments in science and technology take place without collectively assessing their relevance for the BWC. No one is advocating a statutory body like the OPCW Scientific Advisory Board, which is one of the permanent institutions of the CWC.[40] The BWC needs a less formally entrenched arrangement: a reasonably nimble, readily adaptable mechanism through which expert views can be brought to bear on relevant developments in science and technology.

It would not need any amendment to the Convention and would not require permanent establishment. An analogy may help. Just as the States Parties decided in 1980 that a single Review Conference, as prescribed by Article XII, was unlikely to suffice, and made provision for what became a sequence of reviews through a succession of discrete decisions at each subsequent Review Conference,[41] so in 2006 the States Parties should decide that quinquennial assessment of scientific and technological developments is likewise insufficient.

They would then need to make provision for a scientific advisory mechanism, though this should be on an equally interim basis of discrete, reversible, decisions. The advisers should be appointed on the nomination of States Parties and should meet at least once a year, making themselves available to the Annual Meeting to which they would report and feed in assessments.

There has long been a need for States Parties to find ways of demonstrating their own compliance with all the obligations flowing from the Convention; and to demonstrate this in more effective ways, so as to build confidence in the Convention and generate reassurance as widely as possible.

But how can this be done consistently with the legitimate requirements of secrecy in threat assessments and protective programmes so as not to reveal areas of vulnerability? How can the perceptions of potentially offensive capabilities that may result, and the associated suspicions and anxieties, be minimised? Scientific advisers might have a role in the continuing search for answers to these difficult questions, which connect biodefence and dual-use dilemmas.

They could also recommend to the States Parties prudent constraints on research, in the spirit of the original intention that the BWC should include an undertaking "not to conduct, assist or permit research aimed at production of the kind [of weapons or substances] prohibited" on a par with the intended prohibitions on development, production, stockpiling, acquisition, retention and use whether by infection or infestation.[42]

Prudent constraints on research would lessen the pressures on the prohibition of weapons development in the Convention by pushing back the limits. The BWC remains vulnerable without an accompanying 'regime of research'[43] (or any surviving reference to research in its text). But only scientific advisers, appointed by the States Parties and acting in the service of all, can study this subject collectively and bring in authoritative recommendations on this and other urgent questions that go to the heart of the Convention and how it is to be upheld.

The decision to introduce such a mechanism is one of the most important facing the Sixth Review Conference. If necessary it could stand alone; but it would make better sense as one of three innovations, alongside provision for implementation support and reporting to an Annual Meeting of States Parties.

Preparatory Committee, April 26-28 2006

Just as Canada sees the Review Conference as "a major opportunity to take a fresh look at our progress to date and to address areas of deficiency", so "[I]n the same light, the April Preparatory Committee should be structured in such a way as to foster substantive discussions."[44]

This would make a welcome change. The Preparatory Committees (PrepComs) for the first five BWC Review Conferences resembled the first five NPT equivalents (1975-1995) rather than the 'strengthened' PrepCom sequences of 1997-1999 and 2002-2004 mandated by the NPT Review and Extension Conference of 1995. They did not engage in "substantive discussions" but confined themselves to organisational decisions: approving the draft rules, agenda, budget and documentation requirements of the forthcoming Review Conference, and allocating its vice-presidencies and committee chair and vice-chair nominations. These were relatively straightforward tasks, except in the week of April 8-12, 1991 when the PrepCom found itself deadlocked for four and a half days over rival Argentinian and Hungarian claims to the presidency of the Third Review Conference and had to cram its whole agenda into the final afternoon.

For 2006, Ambassador Masood Khan of Pakistan has already been nominated by the NAM, whose turn it is, to chair the PrepCom and preside at the Sixth Review Conference.

In April 2006 the PrepCom will meet over just three days. Even if the Canadian hope for "substantive discussions" cannot be fully realised in such a tight timetable, the PrepCom could still usefully go a little further than its predecessors. It could, for instance, authorise technical work by its secretariat to bring fuller documentation than usual to the Review Conference.

Without this authorisation, the chances of the Sixth Review Conference getting the BWC back on track are diminished. Such technical work might be applied to the preparation of outline programmes and budgets for proposed action plans on national implementation and universality; for implementation support; and for enhanced processing and collective scrutiny of the information provided under the BWC's CBMs.

These outline programmes and budgets are needed to enable the Review Conference to take informed decisions on proposals such as those known to be coming forward from Canada, as well as any others which the PrepCom can identify in April. They should be produced in addition to the usual advance documentation for Review Conferences. Any fears (however unwarranted) of such an expanded workload involving secretariat officials in political decisions could be allayed by placing these new tasks under the authority of the bureau (president and vice-presidents designate) between the PrepCom and the Review Conference itself. Then political oversight would be assured.

Dynamics of BWC diplomacy in 2006

The dynamics of BWC diplomacy in 2006 is unpredictable. Will the Canadian proposals attract the wide support they deserve within the Western Group, and beyond? What initiatives will China, India and Russia bring to the BWC? Will Brazil and South Africa prevail over Iran in setting the tone of NAM politics? How will Pakistan choose to exercise leadership between April and November? What role will be played by the United States? One thing is already clear: the EU role could be pivotal, financially and politically.

Financially, the follow-up EU Joint Action foreshadowed in Fiona Paterson's December 5 statement is the most likely source of funding for any BWC outreach and assistance until universal pro-rated contributions can be authorised. According to her statement, the EU targets are: "to enhance the universality of the Convention through outreach and to help States Parties improve their national implementation through the provision of assistance".[45]

New mechanisms such as those proposed above will in turn make it easier for an audit-conscious EU to find a sufficiently 'institutional' channel through which to support the BWC, in the continuing absence of an OPBW to match the obvious recipients - IAEA and OPCW - of its financial support for the NPT and CWC under comparable Joint Actions.

Politically, the EU has the best chance of ensuring the Convention's stability with regard to verification and related 'compliance measures' such as those envisaged in the Protocol negotiations. This was the subject area of successive shocks in 2001-2002, and it still holds much potential for disequilibrium.

If the United States is so misguided as to repeat John Bolton's 'killer amendment'[46] of December 2001, which sought to have the 1994 mandate abolished together with the Ad Hoc Group whose work US representatives had denounced in July 2001 as fundamentally flawed, the EU - forewarned this time - ought to mount a better organised resistance. (In December 2001 it did at least prefer the adjournment of the Fifth Review Conference to letting Bolton have his way; the 1994 mandate, and in theory also the Ad Hoc Group, survived.)

Once bitten, twice shy: the EU's indignation over the Bolton demands (and rather more over the lack of warning, even to close allies) was all the greater for the obliging way in which European countries had prevented overt blame being attached to the United States for the breakdown of the Protocol negotiations. The same indignation probably contributed to the growth of backbone which the EU and other Western Group governments demonstrated in September 2002 when they successfully opposed a Bolton proposal for wrapping up the Fifth Review Conference quickly and quietly and allowing no BWC meetings of any kind until 2006.

Equally, if any NAM states were rash enough to attempt to reactivate the 1994 mandate prematurely by seeking to reconvene the Ad Hoc Group, the EU would no doubt oppose this or, for that matter, the inclusion of acrimonious language about the United States in the Final Declaration of 2006.

It may be best to say nothing about verification, and not to mention the 1994 mandate (last reaffirmed in 1996), let alone the Ad Hoc Group or its negotiations on the Protocol. So even the language used in the December 2005 NAM general statement is likely to prove unduly provocative at this time, whatever its value in the longer term.[47] This is because it will be seen as introducing a coded reference to a Protocol at a time when the United States remains ideologically opposed to any new, legally binding, instrument for the BWC even without verification.

Conclusion

Will the Sixth Review Conference be a success? In the diplomacy of the BWC, NGOs and 'reformist' governments are accustomed to lowering their sights for particular meetings in the name of realistic expectations. Few if any expect this conference to relaunch the BWC on the road to verification or endow it with a complete set of institutional structures or compliance measures. Even expecting to get BWC diplomacy solidly back on track is pitching it high if efforts have to be diverted into preventing it from running straight into deadlock.

To change the metaphor, the first task of 'friends of the Convention' remains the same as for some years past: to stop the treaty disintegrating, before constructive work can go into its reinforcement. Consolidation precedes advance. Yet all the time those same 'friends of the Convention' have to keep showing States Parties how it could be reinforced and persist in their advocacy of constructive proposals even if political conditions mean that they are not immediately practical or achievable.

Sometimes this is acknowledged by delegates impatient with the aridity of their formal sessions. Ambassador Paul Meyer, for example, ended his national statement for Canada with a plea for the Meeting of States Parties "to set aside one session in this week's schedule for a discussion on future perspectives", and noted, "we shouldn't be leaving all the policy-rich discussion to lunch-time side-events".[48] Since the BWC's NGOs provided a full programme of presentations and discussions across the hallway from the formal sessions, and these were well attended by delegates,[49] this remark was taken as a compliment by NGO people listening.

Three years ago, I reflected that strong NGO engagement was one of two necessary conditions for the BWC's recovery from the debacle of 2001-02. Since then, NGOs have arguably become an even more coherent, better organised expression of civil society, although they remain under-utilised on the margins of BWC diplomacy. But there is still no sign of the second necessary condition being fulfilled, let alone of these two new developments converging as "the way out of the doldrums in which BWC diplomacy has got stuck."[50]

That second condition was the emergence of a nucleus of key, like-minded States Parties, cutting across regions and groups, which would take "the lead in defining and promoting among governments a new agenda for the recovery of the BWC treaty regime [and] provide the core of a draft Final Declaration for 2006" around which others could coalesce.[51] Unfortunately there is no evidence of such a 'new agenda coalition' or 'like-minded group' developing for the BWC. So we are still stuck in the diplomatic doldrums, with recovery postponed.

For December 8, 2006 the test of success will be a final declaration that ties up loose ends and registers where the BWC stands, with some positivie indications of how it can move forward. Ideally the language of the Declaration will achieve confluence of the 1980-1996 and 2003-2005 streams of biological disarmament diplomacy. This task will require an integration of "the recent outcomes of the annual meetings of 2003 to 2005 with the longer-term development of extended understandings, definitions and procedures through the cumulative language agreed by consensus in the Final Declarations of the first four Review Conferences and thus restore a much-needed continuity to the review process in its fullest perspective."[52] It will also need to record agreement on action plans, a consolidation agenda and better collective use of CBMs and scientific advice, and should equip the BWC with a modest set of mechanisms to enable the States Parties to see it safely through to 2011. If this is achieved, then progress can be made, laying the groundwork for the Seventh Review Conference to take the treaty regime of biological disarmament forward with greater confidence, and organise it more effectively as a permanent structure on the international scene.

Notes

[1] Editor's note re abbreviation. Both BWC and BTWC are in common use. Some argue that 'BTWC' ensures that toxin weapons are not forgotten. Others note that, both the BWC and the 1993 Chemical Weapons Convention (CWC) cover toxins and 'BWC' is the form used in the UN classification system.. Both authors preferred 'BWC', but in direct quotes, the speaker's choice is reproduced.

[2] Graham S. Pearson, 'The Biological Weapons Convention Meeting of States Parties, 2005: Report from Geneva, Review No.24', The CBW Conventions Bulletin 69+70 (Sep/Dec 2005) pp 15-27, includes extracts from many national statements, and summaries of all, within a comprehensive account of the Meeting and related NGO activities.

[3] Jez Littlewood, The Biological Weapons Convention: A Failed Revolution (Aldershot: Ashgate, 2005), p 11.

[4] Statement by the Delegation of Malaysia on behalf of the Group of Non-Aligned and Other States Parties to the Biological Weapons Convention, Geneva, December 5, 2005.

[5] Littlewood 2005, pp 209-212.

[6] The 25 members of the European Union and eleven other states: Albania, Bosnia & Herzegovina, Bulgaria, Croatia, FYR Macedonia, Moldova, Norway, Romania, Serbia & Montenegro, Turkey and Ukraine.

[7] Statement by Paul Meyer, Ambassador and Permanent Representative of Canada to the Conference on Disarmament, Geneva, December 5, 2005.

[8] Statement by Fiona Paterson, UK Deputy Permanent Representative to the Conference on Disarmament, on behalf of the European Union, Geneva, December 5, 2005.

[9] The five topics were defined, and allocated to years, in the Decision of the Fifth Review Conference (BWC/CONF.V/17, paragraph 18) as follows: i. the adoption of necessary national measures to implement the prohibitions set forth in the Convention, including the enactment of penal legislation (2003); (ii) national mechanisms to establish and maintain the security and oversight of pathogenic microorganisms and toxins (2003); (iii) enhancing international capabilities for responding to, investigating and mitigating the effects of cases of alleged use of biological or toxin weapons or suspicious outbreaks of disease (2004); (iv) strengthening and broadening national and international institutional efforts and existing mechanisms for the surveillance, detection, diagnosis and combating of infectious diseases affecting humans, animals and plants (2004); (v) the content, promulgation and adoption of codes of conduct for scientists (2005).

[10] The Chairs were Tibor Tóth (Hungary) in 2003, Peter Goosen (South Africa) in 2004 and John Freeman (UK) in 2005.

[11] In December 2005 "the inability of the States Parties to take a further step forward by adopting a more textual approach, as proposed by the Chairman, to the substantive outcome, despite the widespread statements of support for the [September 20, 2005] synthesis document, served as a reminder that the States Parties appear to be most at ease in following similar approaches to those adopted previously." Pearson 2005 (see endnote 2) p 26.

[12] BWC/CONF.V/17, paragraph 18.

[13] EU statement 2005 (see endnote 8).

[14] BWC/CONF.I/10.

[15] Graham S. Pearson and Nicholas A. Sims, 'Article IV: National Implementation', in Graham S. Pearson, Malcolm R. Dando and Nicholas A. Sims (eds.), Strengthening the Biological Weapons Convention: Key Points for the Fifth Review Conference (Bradford: Department of Peace Studies, University of Bradford, 2001) pp 45-60, quotation from p 48.

[16] Pearson and Sims 2001 (see endnote 15), pp 51-58; 'A Draft Convention to Prohibit Biological and Chemical Weapons under International Criminal Law', The CBW Conventions Bulletin 42 (December 1998) pp 1-5; 'International criminal law and sanctions to reinforce the BWC', The CBW Conventions Bulletin 54 (December 2001), pp 1-2.

[17] Angela Woodward, Time to lay down the law: national legislation to enforce the BWC (London: VERTIC, 2003).

[18] Christopher B. Harland and Angela Woodward, 'A model law: the Biological and Toxin Weapons Crimes Act', International Review of the Red Cross 859 (2005), pp 573-586. http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-859 p573/$File/irrc_859_Harland_Woodward.pdf

[19] Strictly speaking the Action Plan authorised by a Decision of the Eighth Conference of the States Parties (CSP) on October 24, 2003 (C-8/DEC.16) ended on November 7, 2005, but the Decision of the Tenth CSP on November 11, 2005 (C-10/DEC.16) on follow-up to the Action Plan has ensured continuity into the next stage. For an authoritative account of both stages and the relationship between them, see Santiago Oñate, Ralf Trapp and Lisa Tabassi, ' Decision on the follow-up to the OPCW Action Plan on Article VII: ensuring the effective implementation of the Chemical Weapons Convention', The CBW Conventions Bulletin 69+70 (December 2005) pp 5-10.

[20] OPCW, 'Update on the Action Plan on National Implementation', Chemical Disarmament Quarterly, vol 3 no 4 (December 2005) p 33.

[21] ibid.

[22] Oñate, Trapp and Tabassi 2005 (see endnote 19), p 6.

[23] The Article XIV section of the Final Declaration of the Third Review Conference (BWC/CONF.III/23) added this new third paragraph ("encourages States Parties to take action to persuade non-parties to accede to the Convention without delay") to the earlier appeals to non-parties to join the Convention, issued by the First Review Conference in 1980 (BWC/CONF.I/10) and the Second Review Conference in 1986 (BWC/CONF.II/13), which it reissued.

[24] Rogelio Pfirter, 'Address by OPCW Director-General to the Tenth Session of the Conference of the States Parties, The Hague, November 7, 2005', Chemical Disarmament Quarterly, vol 3 no 4 (December 2005), p 10.

[25] Scott Spence, 'Achieving effective action on universality and national implementation: the CWC experience', Review Conference Paper 13, April 2005, in the series Strengthening the Biological Weapons Convention edited by Graham S. Pearson and Malcolm R. Dando (Bradford: Department of Peace Studies, University of Bradford, 2005). http://www.brad.ac.uk/acad/sbtwc

[26] BWC/CONF.I/10.

[27] BWC/CONF.III/23.

[28] BWC/CONF.IV/9. "This was a much stronger statement than could have been agreed in 1991. It reflected the evolution of biological disarmament. The persuasive efforts which had begun in 1971 bore fruit in 1996." Nicholas A. Sims, The Evolution of Biological Disarmament (Oxford: OUP for SIPRI, 2001) p 160.

[29] United Nations Secretary-General: Message to the Meeting of State Parties to the BTWC, Geneva, December 5, 2005.

[30] France and Switzerland: Final Declaration of Franco-Swiss Seminar, Geneva, June 9-10, 2005, to mark the 80th anniversary of the signing of the Geneva Protocol, distributed at the BWC Meeting of States Parties, December 5, 2005.

[31] The Article IX section of the Final Declaration of the Fourth Review Conference (BWC/CONF.IV/9) added a new fourth paragraph calling on all BWC States Parties which had not yet done so "to sign and/or ratify without delay" the CWC, then (December 6,1996) in its 180 days' run-up to entry into force on April 29, 1997.

[32] Iris Hunger and colleagues in the Study Group on Biological Arms Control, University of Hamburg, have continued to do valuable work monitoring the CBM programme and coordinating NGO attention to this aspect of the BWC. See Iris Hunger, Confidence Building Needs Transparency: A Summary of Data Submitted under the Bioweapons Convention's Confidence Building Measures 1987-2003 (Austin, Texas & Hamburg: The Sunshine Project, 2005).

[33] Nicholas A. Sims, 'A proposal for putting the 26 March 2005 anniversary to best use for the BWC', The CBW Conventions Bulletin 62 (December 2003) pp 1-6.

[34] Nicholas A. Sims, 'Remedies for the institutional deficit of the BTWC: proposals for the Sixth Review Conference', Review Conference Paper 12, March 2005, in the series Strengthening the Biological Weapons Convention edited by Graham S. Pearson and Malcolm R. Dando (Bradford: Department of Peace Studies, University of Bradford, 2005). http://www.brad.ac.uk/acad/sbtwc

[35] Most recently in the Statement by the Brazilian Delegation at the 2005 Meeting of the States Parties to the BTWC, December 5, 2005.

[36] Sims, 2005 (see endnote 34) offers terms of reference for the Annual Meeting of States Parties in the form of draft text for possible inclusion in the Article XII section of the Final Declaration of the Sixth Review Conference.

[37] Canada statement 2005 (see endnote 7).

[38] On a modular approach to BWC implementation support and the functions such a unit could perform, see Trevor Findlay and Angela Woodward, Enhancing BWC Implementation: A Modular Approach, WMD Commission paper 23 (Stockholm: WMD Commission, 2004) pp 8-9. http://www.wmdcommission.org

[39] United Kingdom, Foreign and Commonwealth Office, Strengthening the Biological and Toxin Weapons Convention: Countering the Threat from Biological Weapons, April 29, 2002 (Green Paper). http:www.fco.gov.uk/Files/kfile/btwc290402,0.pdf

[40] CWC Article VIII, paragraph 21(h).

[41] Nicholas A. Sims, The Diplomacy of Biological Disarmament: Vicissitudes of a Treaty in Force, 1975-85 (London: Macmillan, 1988) pp 149-151.

[42] United Kingdom, Draft Microbiological Warfare Convention, 10 July 1969 (ENDC/255) and 26 August 1969 (ENDC/255/Rev.1); Draft Biological Warfare Convention, August 8, 1970 (CCD/255/Rev.2). The text is from Article II of each successive draft. The ENDC became the CCD at the end of August 1969 and continued its documentation numbering.

[43] Sims 2001 (see endnote 28) pp 173-182.

[44] Canada statement 2005 (see endnote 7).

[45] EU statement 2005 (see endnote 8).

[46] Jonathan B. Tucker, 'In the shadow of anthrax: strengthening the biological disarmament regime', The Nonproliferation Review, vol 9 no 1 (Spring 2002) pp 112-121, quotation from p 114.

[47] NAM statement 2005 (see endnote 4).

[48] Canada statement 2005 (see endnote 7).

[49] Pearson 2005 (see endnote 2) p 24.

[50] Nicholas A. Sims, 'Biological disarmament diplomacy in the doldrums: reflections after the BWC Fifth Review Conference', Disarmament Diplomacy 70 (April/May 2003) pp 11-18, quotation from p 16.

[51] ibid.

[52] Graham S. Pearson and Nicholas A. Sims, 'The BTWC Sixth Review Conference in 2006', Review Conference Paper 15, November 2005, in the series Strengthening the Biological Weapons Convention edited by Graham S. Pearson and Malcolm R. Dando (Bradford: Department of Peace Studies, University of Bradford, 2005) p 25. http://www.brad.ac.uk/acad/sbtwc.

Nicholas A. Sims is a Reader in International Relations at the London School of Economics and Political Science, University of London.