BWC Won't Harm Export Controls, GAO Says

A September report by the General Accounting Office (GAO) concluded that a draft protocol designed to strengthen the Biological Weapons Convention (BWC) would not have weakened export controls, disputing one of the chief reasons U.S. officials cited for rejecting the proposal.

The BWC prohibits the development and stockpiling of biological weapons but does not include any legally binding mechanisms to monitor and verify compliance by states-parties. Six years of multilateral negotiations produced a draft protocol designed to help enforce the treaty, but the United States rejected it in July 2001. (See ACT, September 2001.) U.S. officials cited several reasons for doing so, emphasizing concerns that the protocol’s measures would have harmed biodefense efforts, endangered legitimate commercial interests, and damaged export controls on potentially harmful biological agents.

U.S. concerns over export controls arose after some less developed countries unsuccessfully tried to include provisions in the protocol that would have prohibited export control regimes, such as the Australia Group, which attempts to control the flow of chemical and biological agents and technology to countries suspected of weapons programs. The GAO report, however, suggests that the final draft protocol would actually have enhanced export controls. “Our review of the draft protocol shows that it required countries to establish export controls for dual-use items, included no provisions to eliminate such controls, and contained language that supported the efforts of the Australia Group and similar entities,” the report says.

The State Department told the GAO, the investigative arm of Congress, that the draft protocol included a procedure that would have allowed BWC member states to review other members’ denials of requests to transfer biological agents, thereby opening the door to undermining export controls. In response, GAO investigators reviewed the draft protocol again and found nothing that “cited transfer denials or outlined procedures for overturning such denials.” The report says that the State Department’s “concerns about transfer denial review procedures in the rejected draft protocol are unclear.”

Chemical Weapons Destruction Begins at Gorny

Russia’s first chemical weapons destruction facility began operations December 19 at Gorny in the Saratov region. The facility destroyed 840 kilograms of mustard gas on its first day, said Alexander Kharichev, advisor for the Russian state commission on chemical disarmament, according to a December 20 Interfax report.

Russia officially opened the Gorny facility August 21 but did not plan to begin destroying weapons there until December 2002. (See ACT, September 2002.) Russia’s chemical demilitarization plan, issued in July 2001, calls for completing destruction of the weapons stored at the Gorny site, mostly mustard and lewisite agents, by 2005. Under the plan, Russia would begin scrapping chemical weapons at two other facilities, Shchuch’ye and Kambarka, in 2005.

Under the Chemical Weapons Convention (CWC), Russia was supposed to have destroyed 20 percent of its most dangerous (“Category 1”) weapons by April 2002, but the country missed the deadline and is just now beginning the destruction process. In October the Organization for the Prohibition of Chemical Weapons (OPCW), which oversees implementation of the CWC, extended the deadline for Russia to meet the 20 percent mark. The CWC requires member states to complete all chemical disarmament by 2007, but Russia has requested permission from the OPCW to push its deadline back to 2012. The organization is considering the request. (See ACT, November 2002.) OPCW inspectors are at the Gorny facility and will monitor the destruction process there.

In a December 25 press release, Russia expressed gratitude to Germany, the European Union, and the Netherlands for providing financial and technical assistance at Gorny. “We hope for as fruitful international cooperation in the future during the construction of new chemical disarmament facilities in Kambarka and Shchuchye,” the release said. Meanwhile, Russia and Poland signed an agreement December 17 for Poland to provide more than $100,000 and scientific assistance for Russian chemical disarmament.

Zinoviy Pak, the head of the Russian Munitions Agency, said that Russia has budgeted $174 million for destroying chemical weapons in 2003—about the same as Russia’s 2002 chemical disarmament budget, the Associated Press reported December 25. Russia will need substantial foreign financial assistance to meet its CWC deadlines.

ABM Lawsuit Dismissed

A federal judge dismissed a lawsuit December 30 by 32 members of the House of Representatives charging that President George W. Bush could not unilaterally withdraw the United States from the 1972 Anti-Ballistic Missile (ABM) Treaty. It is unclear if the representatives, led by Dennis Kucinich (D-OH), will appeal the decision. (See ACT, July/August 2002.)

Judge John D. Bates, citing two points, rejected hearing the representatives’ claim that Congress needs to give its assent for the United States to withdraw from a treaty. Bates ruled that the representatives did not have the proper standing to bring the case because they were not personally injured by the president’s act and because the issue of treaty termination is a “nonjusticiable ‘political question’ that cannot be resolved by the courts.”

On the first point, Bates asserted that, since the representatives were claiming that they suffered “a grievous institutional injury by being deprived of their constitutional right and duty to participate in treaty termination,” they could not claim personal injury, a prerequisite for bringing a lawsuit. Bates also denied that the representatives could even claim an “institutional” injury, declaring that they “have not been authorized, implicitly or explicitly, to bring this lawsuit on behalf of the House, a committee of the House, or Congress as a whole.” He further observed that, in the time after the United States withdrew from the ABM Treaty in June 2002, neither the House nor the Senate has objected as an institution to the president’s action.

Explaining his second reason for dismissing the case, Bates noted that no branch of government is assigned the authority to terminate a treaty but that the Constitution “clearly relegates authority over foreign affairs to the Executive and Legislative Branches, with no role for the Judicial Branch to second-guess or reconsider foreign policy decisions.” He added that, since Congress had not asserted itself on the issue, neither should the court. Doing so “would preempt what is clearly the prerogative of Congress,” Bates concluded.

John Burroughs, a lawyer for the representatives, took heart from one aspect of the judgment, noting in a January 1 statement that Bates’ decision “does not foreclose Congress from asserting its constitutional role in the treaty termination process.”

Poland Opts for F-16s

Poland announced December 27 that it would buy 48 U.S. F-16C/D fighter aircraft in a deal estimated to be worth approximately $3.5 billion. The package deal includes the weapons, engines, and electronic packages for the planes.

Poland chose the F-16 jet over two rival European offers, the French-built Mirage 2000-5 and the JAS-39 Gripen, which is jointly manufactured by the United Kingdom and Sweden. Deliveries of the fighters to Poland are expected to begin in September 2006 and finish in 2008.

The United States pushed hard for Poland to buy U.S. fighters. The Bush administration will provide Poland with a $3.8 billion low- interest loan, which Congress has approved, to make the purchase. The loan term is 15 years, during which Poland only needs to pay interest over the first eight years.

Lockheed Martin, the F-16 manufacturer, promised to provide Poland with offsets equaling at least 100 percent of the sale. Offsets are side deals in which the seller compensates the buyer, for example, by transferring technology, establishing production lines, providing training, or investing in the purchasing country.

In December 2001, the United States publicly lobbied Poland to buy U.S. Fighters while criticizing Hungary and the Czech Republic for choosing the Gripen in combat aircraft deals. State Department spokesman Richard Boucher said at that time, “If you’re going to buy [combat aircraft], buy American.” The Czech Republic cancelled its Gripen purchase in November 2002, largely because of funding shortfalls.

Poland, the Czech Republic, and Hungary all joined the NATO alliance in 1999. One of the expectations of the three joining NATO was that they would modernize their militaries by replacing older former Soviet weaponry with new arms that would allow them to participate in alliance military exercises and missions.

Poland is the 24th country, including the United States, to buy F-16 fighters, of which more than 4,000 have been built and delivered.

Nuclear Weapon States Dispute C. Asian Pact

The five official nuclear-weapon states are divided in their support of a proposed Central Asian nuclear-weapon-free zone treaty and an additional protocol, known as the Samarkand text, that outlines their responsibilities under the agreement, according to an official familiar with discussions they held December 17 at the United Nations.

China and Russia suggested that they would endorse the protocol—which stipulates that the nuclear-weapon states respect the zone’s absence of nuclear weapons, refrain from acts that might violate the treaty, and pledge not to use nuclear weapons against countries in the zone. France, the United Kingdom, and the United States, however, continue to express reservations about the Samarkand text formulation.

Their concerns include transit issues for fissile materials in the region, the pact’s relationship to other existing security agreements, and the special status of countries sharing the zone’s borders—Afghanistan, Iran, and Pakistan, among others—that could later accede to the treaty. (See ACT, November 2002.)

Yet, the Central Asian states—Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan—remain firm in their commitment to the draft treaty text, the official noted in an interview January 7, and they will likely stand by it and the Samarkand agreement. “The Central Asian countries don’t want consultations prolonged forever,” he said, adding, “The disputed issues are matters of principle and not matters of compromise.” He confirmed that the Central Asian states intend to sign the treaty in April 2003 to establish the zone.

The five nuclear-weapon states are expected to submit their written comments about the treaty and the Samarkand text to the United Nations by mid-January. Further consultations among the Central Asian countries and nuclear-weapon states might be scheduled prior to the expected signing date.