Allergic Reaction: Washington's Response to the BWC Protocol

Barbara Hatch Rosenberg

Since the Nixon administration, there has been broad bipartisan support in the United States to strengthen the prohibition of biological weapons (BW) and reduce the threat of proliferation. In 1986, during the Reagan administration, the BWC states-parties established an annual exchange of information on biodefense programs and maximum-containment laboratories. During the administration of George H.W. Bush, the United States helped broaden the information exchange and took part in a BWC verification feasibility study by a group of experts known as VEREX. The Clinton administration then participated in a special conference that accepted the VEREX report’s conclusion that measures are available that would strengthen the BWC. In 1995, it initiated the negotiation of a legally binding protocol “to promote compliance with the convention.”

But now, six years after the states-parties to the BWC began formal protocol negotiations, a new U.S. administration with a demonstrated antipathy to arms treaties is about to block the final step. A U.S. policy review has recommended that the United States reject the “chairman’s text,” a draft of the protocol issued at the end of March by Ambassador Tibor Tóth, head of the protocol’s negotiating body, to facilitate settlement of the difficult issues that remain as the negotiations approach their end. The chairman’s text proposes compromises based on extensive consultations with the negotiating parties and paves the way for finishing the protocol by the target date—the start of the November BWC review conference.

Rejection of the protocol would be a stunning mistake that would defy U.S. security interests and the administration’s repeated acknowledgment of the threat that biological weapons pose. Indeed, as recently as June 21, Secretary of Defense Donald Rumsfeld testified that the United States believes there are currently 13 nations seeking to acquire a BW capability.

With its confidentiality provisions, the chairman’s text would impose no undue burden on the United States. It would complement U.S. non-proliferation efforts and make illicit development of biological weapons more difficult and less attractive. The text is generous to the United States on every count that Washington has considered critical, and if the administration rejects this draft text, it may not have another chance at a protocol. With a compromise text on the table, the negotiators are close to the end of their patience. U.S. allies, having already made many concessions to Washington’s demands, see no point in continuing to spar unproductively with the United States. If consensus cannot be reached through minor adjustment of the chairman’s text during this summer’s negotiating session, most countries will conclude that the political will to strengthen the BWC does not exist.

What the Protocol Could Do

The BWC protocol would operate as one component of a comprehensive strategy to fight biological weapons proliferation, effectively complementing intelligence sources, military power, and diplomacy. In serious situations, the protocol would also provide a broader rationale than exists now for international action. The protocol is not designed to find the smoking gun; rather, it is intended to raise suspicions (or eliminate them), so that national means can then be focused on the sites or questions of concern.

The measures outlined in the chairman’s text would accomplish this by requiring states to declare their most relevant installations (i.e., those of greatest potential utility to a proliferator), which would be subject to “randomly selected transparency visits” and “clarification visits.” These visits would provide an incentive for accuracy in declarations and a means for clarifying any questions that might arise regarding them, including whether relevant sites have not been declared. As with any treaty, it is always possible that a party could refuse access, but such behavior would only serve to heighten international suspicion and trigger intense surveillance by national means.

The deterrent value of randomly selected transparency visits and clarification visits would be significant. According to Douglas MacEachin, former CIA deputy director for intelligence, an aspiring proliferator would ideally want to use a commercial plant as a cover for its biological weapons program, thereby facilitating operations and the procurement of dual-use equipment and materials. But if the plant had to be declared, the proliferator would not take the chance that inspectors might obtain enough information during a visit to raise serious suspicions. Instead, the illicit activity would be forced into undeclared, clandestine operation, with all the attendant risks and complications.¹  Any evidence of suspicious activity at an undeclared site could lead to intense surveillance, a clarification process under the protocol, or a “challenge investigation.”

Challenge investigations, the protocol’s weapon of last resort, provide a means by which the most salient questions about a state’s biological capabilities can be addressed. Although challenges have political costs and would not be invoked often, it is likely that they would have been politically feasible in historical cases where allegations eventually proved to be true, such as the 1979 anthrax outbreak at Sverdlovsk. A challenge at that time would have forced the Soviet Union to flout the terms of the treaty and bar access. Such attention might have had a dampening effect on Moscow’s subsequent biological weapons buildup.

The protocol would also aid the U.S. fight against biological terrorism. U.S. military experts, and studies by many nongovernmental experts, agree that, at present and for some time to come, terrorist groups are highly unlikely to have sufficient expertise or resources to succeed in a mass attack with biological weapons. Aum Shinrikyo, the Japanese terrorist group, had plenty of both but failed in nine attempts to mount a biological attack. Although the United States has so far concentrated on preparations for mopping up after a bioterrorist disaster, it would be foolhardy to ignore the more important goal of cutting off the source by preventing the proliferation of biological weapons. That is not something the United States can do unilaterally.

Critics of the protocol say it could not be relied upon to detect violations of the BWC with certainty, but such an argument indicates a fundamental misunderstanding of the purpose and potential of the protocol. As in any dual-use situation, in which the same materials and processes can be used for either peaceful or prohibited purposes, the BWC is not verifiable according to the U.S. definition. To the United States, “verifiability” means that a violation must be detectable with a high level of confidence before it becomes a militarily significant threat to the United States. The protocol was never intended as a means for verifying the BWC in that sense.

This point has been explicitly acknowledged by the U.S. government. As Ambassador Donald Mahley, head of the U.S. delegation to the protocol negotiations, explained in congressional testimony last September, “The United States has never…judged that the protocol would produce what is to the U.S. an effectively verifiable BWC.… What we have sought in the negotiations is greater transparency into the dual-capable activities and facilities that could be misdirected for BW purposes. This could, in our view, complicate the efforts of countries to cheat on their BWC obligations.”

Thus, by increasing transparency the protocol would help deter states from pursuing biological weapons. This objective was an intrinsic premise in the VEREX feasibility study and throughout the protocol negotiations. The argument that the chairman’s text of the BWC protocol would not verify the BWC is therefore specious—no one has suggested that it would do so. But that does not mean that the transparency it could provide would not prove valuable.

Novices often assume that “transparency” means divulging the exact activities in a given facility. That is not the case. It is the facility’s capabilities that must be revealed. Experienced inspectors can then judge whether those capabilities make sense for peaceful purposes and are consistent with the alleged purpose of the facility and with externally available information about its activities and products.

In Iraq, UNSCOM inspectors were adept at spotting inconsistencies with the stated purpose of a site and quickly recognizing what questions needed to be answered. Obtaining hard proof of a violation was more difficult, but that challenge could not have been pursued if the relevant questions had remained unknown.

Beyond its transparency benefits, the protocol would also have the often-overlooked advantage of strengthening the BWC’s requirement to encourage scientific and technological cooperation for the prevention of disease and for other peaceful purposes. Substantive action in this sphere has been demanded by the developing countries, and all parties recognize it as a necessary incentive for adherence to the protocol. A set of specific goals dealing with infectious disease surveillance, detection, diagnosis, prophylaxis, treatment, and control has been fully agreed to by the negotiators and is contained in the chairman’s text. An annual declaration of actions to implement these goals is required and will be reviewed by a committee the protocol establishes.

The Alliance Against Infectious Diseases (AllAID), formed by the World Health Organization and several other health institutions, has proposed an independent program through which the states-parties could cooperate, both financially and otherwise, to help implement the protocol’s cooperation goals. The AllAID program, which has been welcomed by both developing and industrialized parties, would advance both regional self-sufficiency in managing infectious diseases and global early warning of emerging diseases. Its vigilance would speed the recognition and control of any use or escape of biological weapons and would discourage the testing of BW in regions of choice (i.e., those that would likely be unable to distinguish an unusual outbreak from the normal burden of disease).

U.S. Policy Toward the Protocol

The U.S. attitude toward the protocol has been inconsistent. Although President Bill Clinton repeatedly called on the negotiators “to work toward the earliest possible conclusion of a BWC protocol that will further strengthen international security” and pledged U.S. leadership in that effort, his administration was not sufficiently focused on the issue to make sure that his policy was actually implemented. Midlevel agency officials with their own agendas, many of them holdovers from previous administrations, were left to shape U.S. positions on critical components of the protocol. Throughout the six years of negotiations, competing bureaucratic interests resulted in virtual deadlock among these officials, preventing U.S. leadership and greatly limiting the U.S. contribution to the negotiations. Without high-level determination like that demonstrated by George H.W. Bush as vice-president and president in completing and signing the Chemical Weapons Convention (CWC), the protocol did not have a chance.

Soon after it came into office, the Bush administration began a policy review, proposed and directed by Ambassador Mahley, who is considered by negotiators in Geneva to be an opponent of the protocol. For some time, he has called the protocol outmoded and has openly advocated dropping the general concepts on which the chairman’s text is based and seeking a new and narrower mandate at the BWC review conference in November. He even tried, unsuccessfully, to remove the National Security Council official responsible for BW policy.

The review reportedly found 38 substantive problems with the chairman’s text and recommended that the United States oppose the protocol.²  Like many U.S. positions during the negotiations, the details of the critique have not been made public, but the three basic reasons cited for rejecting the text are well-known: it is too weak; it would threaten national security and commercial proprietary information; and it would threaten the dual-use export control regime of the Australia Group, a collection of countries that tries to harmonize policies on exports with chemical or biological weapons potential. None of these objections is valid.

The Protocol’s ‘Weakness’

U.S. officials like to say that the protocol will not catch cheaters. By “catch,” they mean “catch always and with certainty”—the verifiability metric that Ambassador Mahley indicated in the testimony cited earlier. However, as Mahley himself pointed out during that same testimony, verification has never been the objective of the protocol. Nevertheless, U.S. officials continue to set up and knock down this straw man in their attempt to discredit the chairman’s text.

For example, in written testimony on the BWC protocol that he submitted to Congress on June 5, Owen James Sheaks, assistant secretary of state for verification and compliance, discussed nothing but verifiability and concluded that national intelligence, rather than a protocol, is essential to detect BWC cheating.³  Fortunately, it is not necessary to chose between a protocol and national intelligence—they would work hand in hand, as already discussed. If catching cheaters was the only goal of the United States, it should never have participated in the negotiations in the first place.

The “weakness” argument is not only illogical but also disingenuous. After the United States adamantly insisted on loopholes to limit the declaration of biodefense facilities and decided this year to oppose the declaration of production facilities other than vaccine plants, U.S. officials now complain that the chairman’s text does not cover all relevant facilities. The United States is also responsible for provisions in the text that prohibit sampling during visits and that substitute host-state control of access for the more stringent rules of “managed access.” The United States also watered down the stated purpose of randomly selected transparency visits from “confirming the accuracy of declarations” to “increasing confidence in the consistency of declarations.”

Except for the United States, all the nations in the Western Group, with the possible exception of Japan (which tends to keep quiet and follow the United States), and essentially all the knowledgeable non-governmental organizations have advocated a stronger protocol than that represented by the chairman’s text.4  They have been supported by most Eastern European and Latin American countries. In the course of the negotiations, however, they have tried to accommodate U.S. positions, only to have the United States come back with further requirements that undercut the effectiveness of the protocol. If the United States had stood solidly with the Western Group on earlier formulations of the protocol text, the text would be much stronger today. But the obvious split prevented the West from negotiating with other blocs from a position of strength.

Incorporation of U.S. demands in the chairman’s text also left Ambassador Tóth in a weakened position to deal with the demands of other countries. Consequently, U.S. allies consider the chairman’s text to be the most effective protocol that can now be achieved. To soothe domestic public opinion, the administration has invoked the simplistic argument that the chairman’s text is too weak, but that insincere position is sure to antagonize the rest of the world.

Curiously, some critics who have been outside the protocol process have suggested that the perception that the chairman’s text is weak might be attributable to the lack of U.S. trials for on-site procedures. But that is not a strong explanation—there has been a plethora of detailed information available on how on-site procedures would work.

Though the United States has contributed no official reports to the negotiations on trial visits or investigations conducted to test protocol provisions, 12 trial visits have been reported by other countries during the negotiations—most of them by U.S. allies. Half of those trials involved more than one country or included foreign observers. All of them concluded that non-challenge visits would be effective in strengthening the BWC and increasing confidence in compliance. They also concluded that confidential information could be protected.

In addition, copious amounts of information were available to the negotiators from trial inspections conducted by the United States and many other countries during negotiation of the CWC, as well as from the UNSCOM experience in Iraq and from the experience of the various national and international inspections carried out routinely at sites relevant to the protocol.
It might be desirable for the United States to carry out further on-site trials of its own in order to allay the fears of those potentially affected, but the absence of such trials is not a reason to oppose the chairman’s text.⁵

Confidentiality

In his September 2000 testimony, Ambassador Mahley noted that experience with inspections under the Chemical Weapons Convention has shown that confidential information can be adequately protected. “We are using the lessons and experience learned to explore ways to achieve an equal level of protection in biological activities, and we are confident we can do so by the time any BWC protocol is in place,” he wrote. “Thus, the impact on U.S. facilities should be manageable, while the value of on-site activity in other countries to transparency and our BW non-proliferation efforts is real.” But despite Mahley’s comments, the United States continues to object to the protocol on the grounds that visits and investigations could threaten the commercial proprietary information of U.S. firms, as well as national security information.

This argument does not hold water. The chairman’s text possesses more safeguards for confidential information and is less intrusive than the Chemical Weapons Convention, to which the United States has been a party since 1997. Unlike the CWC, the protocol text does not require routine visits, it allows no sampling and analysis in non-challenge visits, and it gives control of access to the host country. No confidential information is required in declarations. These aspects of the protocol text comply with the wishes of the U.S. bioindustry, which is particularly concerned about protecting its proprietary microbial strains.
Furthermore, the CWC covers many of the same facilities as the BWC. For example, facilities handling toxins (including those which are part of the U.S. biodefense program) fall under both treaties. Most pharmaceuticals are manufactured chemically and therefore are “discrete organic chemicals,” which are covered by the CWC. And challenge inspections under the CWC can take place “anytime, anywhere,” as President George H.W. Bush insisted during the CWC negotiations, and could therefore include biofacilities.

The chairman’s text of the BWC protocol exempts many defense facilities and most pharmaceutical facilities from declaration, thus providing additional protections for confidential information. In addition, the text contains all the protections for confidentiality that were developed for the CWC with the help of the chemical industry. Even the stronger protocol measures originally considered were far less intrusive than the many inspections that the U.S. bioindustry now undergoes on a routine basis, such as those conducted by the Food and Drug Administration and other federal agencies and those conducted by countries that import American-made pharmaceuticals. As time progresses, globalization is likely to require more and more such international inspections to facilitate trade.

U.S. officials have encouraged industry criticism of protocol measures and used those objections as a shield for unstated government policy concerns. But if U.S. companies were called upon by the government to cooperate with the protocol in the interests of national and global security, they would surely comply. European pharmaceutical and biotech companies—often part of the same multinational corporations as their U.S. counterparts—have cooperated with their governments in formulating policies supportive of the protocol, and the present chairman’s text more than meets all the essential confidentiality concerns that have been expressed by the U.S. pharmaceutical and biotech industries.

Organizations representing the biotech and pharmaceutical industries are understandably lying low at the moment rather than taking a position on the chairman’s text in order to avoid conflict or blame from one faction or another. If the United States is still worried about the impact the protocol could have on industry, it should consult a joint article by representatives of the pharmaceutical industry and the Federation of American Scientists that suggests further safeguards for industry which could be incorporated into U.S. protocol implementing legislation.⁶

Export Controls

Another objection to the protocol raised by the United States is that the protocol’s provisions would intrude on nations’ sovereign right to control their export of dual-use items. However, one need only read Article 7 of the chairman’s text to realize that, although its rhetoric concerning international dual-use transfers is meant to please the critics of the Australia Group, its substance supports the Western Group position. The text contains only guidelines, with no hard obligations regarding exports; each state-party has full discretion over implementation of the suggestions in the text. There is no binding arbitration mechanism, only optional discussion of any questions that may arise, provided that both parties agree to talks. Ambassador Mahley’s protest, made in his House testimony in June, that discarding or weakening export controls or the Australia Group would be a “price much too dear to pay” is a red herring.

Outlook for the Future

Although the negative recommendation of the U.S. review of protocol policy has been accepted by Secretary of State Colin Powell, government officials maintain that the review is in progress until the president makes a decision. On this excuse, while the other parties discussed the chairman’s text during the last negotiating session, which took place April 23-May 11, U.S. negotiators sat in silence, apparently in the vain hope that some other country would do their dirty work and kill the text and with it the possibility of reaching consensus on a protocol any time soon. Rejection of the chairman’s text puts the United States in a position more extreme than those countries on the radical fringe—China, Libya, Cuba, Iran, and Pakistan—which have expressed significant objections to but not outright rejection of the text. Washington’s silence has allowed them to use the United States as a shield for their views.

The Bush administration’s reported reasons for rejecting the protocol are unconvincing and inconsistent. The White House’s true motivation is ideological: because arms control treaties cannot provide perfect security, they are counterproductive for the United States; they constrain the U.S. ability to exercise its full offensive and defensive capabilities and thereby limit its flexibility to pursue its self-interest. This unilateral ideology is the in-house rationale for rejecting the BWC protocol, and it is driving the administration’s response to many other foreign policy issues as well.

In its rejection of the Kyoto protocol to combat global warming and its opposition to the Anti-Ballistic Missile Treaty, the Bush administration learned that rejections had best be accompanied by alternative suggestions. However, after 10 years of concentrated effort by the world’s experts, it is unlikely that administration officials will be able to come up with new alternatives to control biological weapons. Even if the United States or some other country were to propose a new, more limited protocol, there are so many different national positions on what should be included that consensus would be impossible.⁷

Every Western ally of the United States and all the Latin American countries support the chairman’s text as the basis for finalizing the protocol this year. The 15 foreign ministers of the European Union countries, meeting June 11-12, stressed “the high priority attached to the successful conclusion, this year, of the negotiations” and emphasized that “the compromise proposals made by the Chair in its composite text brings now an agreement within reach.” On June 14, the European Parliament passed a resolution containing similar language. However, delegations from a number of allied countries, sent to Washington to support the protocol, have been given a cool brush-off, as has the chairman of the negotiations, Ambassador Tóth.

Unless substantial progress toward an agreement is made in the remaining four weeks of negotiations, there is sure to be a contentious row at the November review conference, with the United States receiving most of the blame for the failure of the negotiations. Washington has led the chorus in citing the dangers of biological weapons; if it turns down an opportunity that is within reach to mitigate these dangers, it will signal potential proliferators that the United States and the international community are not prepared to enforce the ban on biological weapons.

As citizens of the lone superpower, Americans will be a prime target if these weapons are used either strategically or as an instrument of terror. Even if they are never used, the proliferation of biological weapons could lead to the escape of deadly agents and the possible establishment of new and uncontrollable diseases in the biosphere. There are no military weapons that can “take out” an emerging disease, nor are there any defensive measures that can reliably protect the public. Rather than waiting for a catastrophe to prove these points, the United States should take a step toward prevention right now by accepting the chairman’s draft text for a protocol to strengthen the Biological Weapons Convention.

NOTES
1. Douglas MacEachin, “Routine and Challenge: Two Pillars of Verification,” The CBW Conventions Bulletin, March 1998.
2. Michael R. Gordon and Judith Miller, “U.S. Germ Warfare Review Faults Plan on Enforcement,” The New York Times, May 20, 2001, p. A1.
3. U.S. government witnesses Ambassador Donald Mahley and Owen James Sheaks, assistant secretary of state for verification and compliance, submitted testimony but were ordered by the administration not to appear in person at a hearing on the protocol held June 5 by the House Government Reform Subcommittee on National Security, Veterans Affairs and International Relations. As a result, Chairman Christopher Shays (R-CT), a moderate Republican, has invited government witnesses to a follow-up hearing in July.
4. The Western Group is comprised of the European states, Argentina, Australia, Canada, Japan, New Zealand, South Korea, and the United States.
5. To be credible to a serious observer, at this stage such trials would have to be multilateral and would have to make a special effort to demonstrate the absence of bias.
6. “Implementing the BWC Protocol in the United States: What It Means to the Biopharmaceutical Industry,” BioPharm, August 2000, p. 46.
7. The rumored U.S. preference is for a challenge investigation regime, perhaps with limited declarations of certain defense facilities. However, the latter are already part of the current, annual, politically binding information exchange, and making them legally binding is unlikely to be much of an improvement without random visits to encourage honesty. The former would require either ad hoc inspectors borrowed from the foreign competitors of the facilities inspected—not a good way to protect confidential information—or a standing inspectorate. Because challenge investigations are sure to be rare (none have yet been requested in the four years of the CWC’s operation), permanent inspectors would have to be paid for years of inactivity, during which their expertise would tend to decay.