In September 1994, a special conference of the states party to the Biological Weapons Convention (BWC) ordered the formation of the Ad Hoc Group to negotiate a legally binding protocol to "strengthen the effectiveness" and "improve the implementation" of the convention. The BWC outlaws biological weapons but contains no verification measures.
The Ad Hoc Group, which has met in Geneva multiple times each year since 1995, has used a draft protocol called the "rolling text" as the basis for its negotiations since the summer of 1997. While subsequent negotiations based on this text made substantial progress on shaping the protocol regime, a number of key issues remained disputed, effectively stalling the negotiations.
To help resolve this impasse and wrap up the negotiations, after months of private consultations with the delegations, on March 30 Chairman Tibor Tóth released his own draft protocol, which contains proposed solutions to all the outstanding issues. If the Ad Hoc Group agrees, Tóth's text could replace the rolling text as the draft protocol. (See Tóth Issues Draft BWC Protocol, Reactions in Geneva Mixed or full text of draft protocol for details.)
The chairman's text totals 210 pages, made up of 30 articles, three annexes, and nine appendices. Largely derived from the rolling text, it relies on a tiered system of declarations, "visits," and investigations to ensure compliance with the BWC, and it establishes a regime that offers benefits to states-parties in the form of scientific and technical cooperation.
Beginning on the opposite page is an executive summary of the chairman's text prepared by ACT Managing Editor Seth Brugger. Following it are six commentaries by BWC experts with conflicting opinions on the utility that the provisions outlined in the chairman's text would have for the BWC and for U.S. security.
Article 1 establishes the protocol's purpose, saying it should "strengthen the effectiveness" and "improve the implementation" of the Biological Weapons Convention (BWC). When implementing the protocol, states-parties would have the "right" to protect commercial proprietary and national security information. Member states are explicitly prohibited, however, from using this right to "conceal evasion" of their "obligations" or to "engage in activities prohibited under the Convention."
Article 2 defines 24 terms relevant to the protocol, including "bacteriological (biological) and toxin weapon" and "purposes not prohibited by the Convention." Many Ad Hoc Group delegations have objected to defining these and other key terms that appear in the first article of the BWC, contending that doing so could amend the convention's scope and go beyond the group's mandate. However, the chairman's definition of these two terms uses the same language as the first article of the BWC, thereby skirting the issue of amending the convention. The text also refrains from defining other terms, such as "biological agents," "toxins," or "hostile purposes," that also appear in BWC Article I.
To implement the protocol, Article 16 establishes the Organization for the Prohibition of Biological Weapons (OPBW), which would likely be located in either The Hague or Geneva and would employ about 250 people. Under Article 1 of the protocol, the organization must carry out its duties in "the least intrusive manner" possible. Like the implementing organization for the Chemical Weapons Convention, the OPBW would be comprised of three bodies: the Conference of States Parties, the Executive Council, and the Technical Secretariat.
The Conference of States Parties would be the organization's "principal" body, overseeing the protocol's implementation. Comprised of all protocol member states, it would normally meet once a year and decide on policy issues relevant to the BWC regime. The conference would be responsible for taking action to ensure compliance with the regime and to punish violations. It would also have administrative duties, such as adopting the budget, electing members of the Executive Council, appointing a director-general, and establishing subsidiary bodies, such as the "Cooperation Committee." (See below.)
The Executive Council would oversee the activities of the Technical Secretariat and would have responsibilities such as approving requests for "clarification" visits and investigations and for acting on recommendations made by the Cooperation Committee and other subsidiary bodies. The council would be comprised of representatives elected for two-year terms from 51 member states, and seats would be allocated on an "equitable geographic" basis. For example, West and South Asian states would have five seats while African states would have 11. The council would meet on a "regular" basis, most likely several times per year.
In addition, the council would "consider" any concerns about compliance or the abuse of regime-established privileges. In cases of abuse, it should consult with the states-parties concerned and could request that a state-party take measures to resolve the matter. It could also recommend measures for the Conference of States Parties to take to settle the matter. In cases of "particular gravity and urgency," the council could bring the matter directly to the attention of the United Nations General Assembly or Security Council.
The Technical Secretariat would be primarily responsible for implementing the activities mandated by the protocol. Headed by a director-general, it would perform such functions as collecting declarations, conducting visits and investigations, and helping to implement cooperative measures.
To help ensure that states-parties comply with the BWC regime, the chairman's text would establish a system involving the declaration of facilities and activities, on-site visits to facilities, and the investigation of suspect illicit activity.
Declarations. Under Article 4, states-parties would declare whether they had biological weapons between January 1, 1946, and the date when the BWC entered into force for them. They would also provide information on any facilities they possessed that produced biological agents that were weaponized or stockpiled or whether they used biological weapons during the 10 years before the convention entered into force for them. States-parties would further declare national biological defense programs or activities they had during the 10 years before the protocol entered into force for them. They would have to submit these declarations within 180 days of the protocol's entry into force for them.
Every year, by April 30, member states would declare whether they possess other facilities of relevance to the convention, such as "maximum biological containment" facilities. States would also declare many other types of facilities, such as "high biological containment" facilities, but only if they exceed a certain size and conduct specified activities, such as producing vaccines.
States-parties would also annually inform the Technical Secretariat whether they have national biological defense programs or activities, which are explicitly permitted. Although member states would submit a summary of all their defense programs' activities, the text limits the number of declarable defense facilities and exempts smaller defense facilities from submitting declarations.
Article 6 allows the director-general to request a state-party to submit a declaration on a facility that it did not declare if the director-general feels that the facility should have been declared.
To promote transparency, Article 3 requires two declarations on the "biological materials" used by defense programs. (Biological materials are defined as agents or toxins listed in the text's annexes that are used for biological defense purposes.) Facilities would declare the total amount, within a range (e.g., up to 10 grams, 10-50 grams, and so forth), of biological materials that they possessed during the previous calendar year. Each year, facilities would also declare, within a range, the highest total amount of biological materials present at "any particular time in the calendar year."
States-parties would have the right to review each other's initial and annual declarations. If a state-party fails to submit its declarations, after a certain amount of time it would be subject to penalties, such as losing access to other member states' declarations, its right to sit on the Executive Council, or its vote in the Conference of States Parties.
Visits and Clarification Procedures. Article 6 establishes three types of visits by OPBW personnel to facilities to help ensure the accuracy of declarations, enhance transparency, provide assistance, or clarify questionable declarations. The organization could not conduct more than 120 visits per year. The text also lays out a variety of consultation mechanisms to allow states to clarify the content of declarations about which they have questions.
Under the chairman's text, the Technical Secretariat could conduct "voluntary assistance visits" at the invitation of a member state. These visits would allow the requesting state to obtain assistance with implementing the protocol, such as preparing declarations. These visits could also help a member state receive "relevant technical assistance and information" or take advantage of cooperative activities specified in the text.
The Technical Secretariat would also conduct "randomly selected transparency visits" to declared facilities. These visits, which would comprise 50-75 percent of all visits conducted by the OPBW, would aim to increase "confidence" in the accuracy of declarations, encourage the submission of accurate declaration, and enhance transparency. Certain "production" facilities, such as those used by pharmaceutical companies producing drugs and antibiotics, would be exempt from these visits until at least the first protocol review conference. (See below.)
The facilities visited by the OPBW would be chosen on a random basis, and the probability of a state receiving such a visit would be proportional to the number of facilities it declares. Although each state declaring facilities would receive a transparency visit at least twice every five years, no state could receive more than seven such visits per year, and no facility could receive more than three such visits in any five-year period.
The chairman's text establishes a number of measures to protect the interests of the party hosting the transparency visit. Fourteen days before the visit, the hosting state would receive notice of the visit, including the visiting team's estimated time of arrival in the country and the facility to be visited. During the visit, the hosting party would "have the right to take measures to protect national security and commercial proprietary information." In addition, a visiting team, comprised of no more than four people, could only "normally" bring into the visited facility instant developing cameras, voice recorders, protective equipment, and personal computers. Only the hosting party would operate the cameras, and the use of other equipment would be at the hosting party's discretion. The hosting state would receive copies of all information obtained during the visit.
Articles 6 and 8 outline procedures a state-party could follow if it wanted to clarify an "ambiguity, uncertainty, anomaly or omission" in another member state's annual declaration. These consultations could concern declared facilities or undeclared facilities that meet the criteria for declaration. Among other things, the consultation process could involve written correspondence or meetings between the state in question and either the director-general or the member state raising the concern. A special session of the Executive Council or the Conference of States Parties could even consider the matter. And at any point, the state under scrutiny could invite the OPBW to visit the facility in question to resolve the concern.
If, after written correspondence and a meeting, the state-party raising the concern or the director-general considers that the matter is not resolved, the director-general could suggest that the member state under scrutiny offer a "clarification" visit to the facility in question. If such a visit is not offered within 21 days, the Executive Council could vote to impose a clarification visit. The hosting state would receive seven days' advance notice of such a visit, and the rules elaborated above to protect the visited state during transparency visits would apply.
Investigations. If a member state has a concern about another state-party's compliance with the convention, it would have the right to request an investigation. Under Article 9 and the Annex on Investigations, states-parties could initiate and undertake two types of investigations: field investigations and facility investigations. Field investigations could be launched in areas where the release or suspected use of biological agents has caused concern about a possible violation of the BWC. Facility investigations could be conducted if there is concern that a particular facility is violating the convention.
To initiate an investigation, a state-party must submit a request to the director-general, who then determines whether the request provides required information, such as the approximate time and location the alleged illicit activity took place. Once the director-general has approved the request, it may require the Executive Council's approval, depending on the type of investigation.
The text allows a field investigation to transition into a facility investigation if a facility in the investigated state is "directly relevant" to the noncompliance concern. Such an investigation could only be requested by the Executive Council, the state that requested the field investigation, the receiving state-party, or, if applicable, a third state in which the facility is located. Approval and conduct of such an investigation would follow the normal procedures for facility investigations.
A facility investigation would not proceed unless a simple majority of the Executive Council voted for it to go forward. A field investigation of alleged use of biological weapons on the territory of the requesting state-party would go forward unless three-quarters of the Executive Council voted to stop it. A field investigation of alleged use of biological weapons on the territory of another state-party would proceed unless a simple majority of the Executive Council voted to stop it. A field investigation of an outbreak of disease on the territory of the requesting state-party would go forward unless two-thirds of the Executive Council voted to stop it. A field investigation of an outbreak of disease on the territory of another state-party would not proceed unless a simple majority of the Executive Council voted for it to go forward.
A country would be given notice of a planned facility investigation at least 12 hours before the arrival of an investigating team in the country. It would have to provide the team access to the facility in question within 108 hours of being notified of the investigation. The investigating team could not exceed 25 members or break down into more than two groups, unless otherwise agreed by the investigated state. And such an investigation could not exceed 84 consecutive hours without agreement by the receiving state.
A state would receive notice of an impending field investigation at least 12 hours before the arrival of an investigating team in the country. The state would have to provide the investigating team—which could not exceed 30 members without the receiving state's approval—access to the area to be investigated within 48 hours of the team's arrival. The investigation could not go on for more than 30 days without an extension authorized by the Executive Council and agreed to by the receiving state-party.
As with visits, the text contains a number of measures to protect an investigated state. For example, as a rule, an investigating team would start its investigation with the least intrusive measures and progress to more intrusive measures "only as required to fulfill its mandate." In addition, the investigated state would have the right to protect national security and confidential information by using "managed access" techniques, such as shrouding sensitive equipment or limiting the time the investigation team could spend in any area. The investigated state could also receive copies of all information gathered during the investigation.
The investigating team and receiving state would negotiate the nature and extent of access to an investigated area. But the receiving state would have "the right to make the final decision" on such matters. During a facility investigation, the receiving state-party would have the explicit right to restrict access to "particularly sensitive" parts of buildings "not related to the investigation mandate." However, if less than full access to an investigated area is provided during any investigation, the receiving state-party is expected to "make every reasonable and feasible effort to provide alternative means to demonstrate compliance and to clarify the possible non-compliance concern."
Protective measures also extend to the collection of material. The receiving state-party may request that certain samples, documents, or other materials not be removed if necessary to protect national security or commercial proprietary information. A receiving state could even refuse to allow an investigating team to take samples during a facility investigation.
The chairman's text also contains measures to prevent states-parties from abusing their right to request an investigation. When reviewing the investigating team's final report, if the Executive Council believes that abuse had taken place, it could take corrective measures such as suspending the rights of the abusing party to serve on the Executive Council or to request an investigation.
During the protocol negotiations, some developing states wanted the protocol to require all states-parties to subsume their national export controls under a multilateral framework that would be applied uniformly to all member states. Others called for a mechanism to review or overturn denials of requests for biotechnology transfers. Although the text does not include either of these provisions, it does require states-parties to review and report on their national export controls within 180 days of when the protocol enters into force for them. It also obligates member states to report any subsequent changes in their controls.
The chairman's text also contains measures to foster compliance with the BWC's ban on exporting agents or materials for use as biological weapons. Article 7 would require states-parties to take measures to ensure that transfers of dual-use items are only used for purposes not prohibited by the convention. Although the text only suggests steps that states-parties could take to fulfill this commitment, it requires them to annually declare data on the export of certain equipment, such as fermenters or bioreactors with specialized capabilities. Also, states-parties would have the right to consult with other member states about transfers that they believe could violate the BWC's transfer provisions.
Incentives to Join the Protocol Regime
The text outlines a number of incentives for states to join the protocol regime. It guarantees member states "assistance and protection against the use or threat of use" of biological weapons. It also establishes a number of measures to promote scientific and technological cooperation and trade among states-parties.
Article 14 outlines measures that the OPBW would take to promote cooperation. For example, it calls upon the Technical Secretariat to develop a framework for states-parties to "support an international system for the global monitoring of emerging disease." The OPBW may work with other international agencies, such as the World Health Organization, to further its goals in this area.
The text also obligates states-parties to implement measures to promote scientific and technological exchanges in "peaceful" biotechnology. It calls upon them to ensure the right of states-parties to participate in the "fullest possible exchange" of biological agents, toxins, and other materials for use for peaceful purposes.
States-parties would also be required to "promote and support" a range of specific activities. Examples include improving the ability of states-parties to prevent, detect, and control disease; transferring technology for the "peaceful uses of genetic engineering"; and establishing a "framework" of cooperative research activities to improve states-parties' capabilities to combat disease. Member states could also partake in collaborative efforts to improve each other's peaceful biotechnology research capabilities. These activities could be done individually, jointly, or with other international organizations.
To help enforce provisions on cooperation, the protocol allows for the establishment of a "Cooperation Committee," which would consult on, monitor, and review trade and cooperation among states-parties. The committee would have the power to make recommendations to the Executive Council on the implementation of cooperative measures in the protocol.
In addition, the OPBW would have a department devoted to implementing the cooperative provisions, and a state-party concerned about implementation in this area could raise its concerns with the Executive Council. Furthermore, states-parties would submit annual declarations on measures taken to promote cooperation and trade among member states.
Penalties for Noncompliance
Article 12 outlines measures that could be taken in the event that member states are found not to be in compliance with the convention. If states-parties took actions that could result in "serious damage" to the convention, the Conference of States Parties could recommend collective punitive measures to other states-parties. Matters of noncompliance could also be brought before the UN Security Council and General Assembly. States-parties would have to address questions raised about their compliance with the BWC. If they do not take adequate measures to assuage compliance concerns, the conference could restrict or suspend their BWC-related rights and privileges.
The chairman's text would require member states to pass national implementing legislation, prohibiting individuals from conducting activity banned by the convention in any area under their control or for their citizens to partake in such activity anywhere.
Any country, after giving three months' notice, would have the right to withdraw from the protocol if the protocol "jeopardized its supreme interests." The protocol would be open for signature by all BWC states-parties and would enter into force 180 days after ratification by 65 states—seven from Africa, four from East Asia and the Pacific, four from Eastern Europe, six from Latin America and the Caribbean, nine from Western European and "other states," and three from West and South Asia. It could not enter into force less than two years after opening for signature, and it would remain in force as long as the BWC was in force.
The protocol and its annexes would not be subject to reservation. And the appendixes—containing declarations forms—could only be subject to reservations compatible with the "object and purpose" of the protocol. A conference would review the protocol's implementation within five years of the protocol's entry into force, and, unless decided otherwise, such a conference would be held every five years thereafter.