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Former IAEA Director-General
Strengthening the BWC: Moving Toward a Compliance Protocol
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January/February 1998

By Jonathan B. Tucker

Note: The following sidebars appeared in the original ACT publication, and are included after the main text:

Verifying the BWC: The Pharmaceutical Industry's View

The Australia Group

The 1972 Biological Weapons Convention (BWC), which bans the development, production, stockpiling and transfer of biological and toxin weapons, has been in force since 1975. To date, 140 countries have joined the treaty, including the five nuclear-weapon states and a number of countries of proliferation concern such as Iran, Iraq, North Korea and Libya; another 18 states have signed but not ratified the accord. Yet, the absence of any formal mechanisms to monitor compliance has effectively reduced the BWC to a gentleman's agreement and undermined its ability to resolve festering allegations of non-compliance and to address growing concerns about the proliferation of biological warfare (BW) capabilities. In September 1994, the memberstates of the BWC, recognizing the need to strengthen the treaty, held a special conference in Geneva to consider a report on the scientific and technical aspects of biological weapons verification prepared by a group of governmental experts known as VEREX. At this meeting, the participating countries agreed to establish a new negotiating forum, called the Ad Hoc Group (AHG)—open to all states-parties—to develop a legally binding protocol to the BWC. The goal of the negotiations is to craft a legally binding regime that will promote compliance with the treaty. Because the protocol will apply only to those states-parties that ratify it, negotiators are seeking to avoid creating a two-tiered regime under which only some states accept new compliance obligations.

Since January 1995, representatives from over 50 countries have met periodically at the Palais des Nations in Geneva (separate from the UN Conference on Disarmament) to pursue the protocol negotiations through the AHG. The group held one procedural and two substantive meetings in 1995, two meetings in 1996 and three meetings in 1997. In 1998, the AHG will intensify its work schedule, having agreed to 11 weeks of negotiations in four sessions: three weeks in January, one week in March, three weeks in late June and early July, and four weeks in September and early October.

The forum has functioned largely through the efforts of four informal working groups, known as "Friends of the Chair" (FOCs), which have addressed the major issues in the negotiating mandate: definitions and objective criteria, chaired by Iran; confidencebuilding measures (CBMs), chaired by Hungary; compliance measures, chaired by Britain; and Article X measures (relating to peaceful cooperation and technology transfers), initially chaired by Chile and now by Brazil. Although the FOCs produced substantive working papers during the first two years, most of the discussion was of a theoretical nature, with little emphasis on developing concrete measures and rocedures.

The Fourth BWC Review Conference in November 1996 discussed the work of the AHG and encouraged it to transition to a negotiating format. (See ACT, January/February 1997.) At its March 1997 meeting, the AHG agreed that its chairman, Ambassador Tibor Tóth of Hungary, would move from committee reports to a consolidated draft—a "rolling text" in diplomatic parlance—for consideration at its next session. To this end, a onepage annex titled "Possible Structural Elements of a Protocol to the BWC" was attached to the group's procedural report. Using this outline, Ambassador Tóth produced a draft treaty by cutting and pasting text from the various FOC working papers under the appropriate headings. Many sections (including entire articles) of the initial rolling text were blank, and the text was in narrative form rather than in legal language.

During its July 1997 meeting, the AHG fleshed out several of the articles in the draft treaty, a process that continued during the September session. In addition, four additional FOCs were established: one, chaired by South Africa, is drafting an annex on investigations; an FOC chaired by Australia is preparing the sections on legal issues; Germany chairs an FOC on confidentiality; and India chairs an FOC on national implementation and assistance. By the end of the September 1997 session, the draft treaty had grown by more than 50 percent, to 253 pages, and represented a nearly complete text consisting of some 23 articles, eight annexes and five appendices.

During the January 1998 session, new text was added on consultation procedures, declarations and clarification visits. Considerable effort is still required, however, to convert the rolling text into a coherent legal protocol. Moreover, as is traditional in international negotiations, words, phrases and sections not yet agreed by consensus have been set off in brackets. So far, bracketed language has proliferated as fast as the text.

When complete, the protocol will specify how international inspectors from a future BWC implementing organization will monitor facilities suspected—or merely capable—of producing biological weapons. Possible elements of the future regime include:

  • Requiring countries to declare all treaty-relevant facilities;
  • Occasional "challenge" inspections to pursue suspected treaty violations at declared or undeclared facilities;
  • Possible "nonchallenge" visits to check the accuracy of declarations and to deter declared sites from engaging in illicit activities; and
  • Field investigations to pursue allegations of biological weapons use and suspicious outbreaks of disease potentially related to a clandestine biological weapons program.

Monitoring compliance with the BWC is particularly challenging because the equipment and facilities used to cultivate BW agents are essentially the same as those employed for the commercial production of vaccines, antibiotics, vitamins, biological pesticides, feed supplements, and even beer and yogurt. Such dualuse technologies for industrial microbiology offer real benefits to developing countries through improved agricultural yields and better public health. But these technologies also have a dark side: states can cloak their acquisition of biological wepons under the guise of legitimate research and production.

Whereas chemical weapons such as mustard gas or sarin must be produced in multiton quantities in a large production plant to be militarily significant, biological agents such as anthrax replicate within the host and hence are much more potent per unit weight. Because it takes only on the order of a few kilograms of dried anthrax bacteria to produce a militarily effective weapon, a deadly arsenal could be prepared in a 50liter continuousflow fermentor over a period of weeks without the need for longterm stockpiling.

Cultivation of diseasecausing micro-organisms cannot be banned outright because the same pathogens that can be weaponized can also have legitimate medical and industrial uses. Pharmaceutical companies routinely grow large quantities of dangerous pathogens for the production of vaccines, and potent toxins such as ricin and botulinum toxin play an increasingly important role in the treatment of cancer and neurological diseases. In addition, the development of defenses against biological weapons entails some work with dangerous pathogens and toxins. Recognizing these legitimate applications, the BWC specifically prohibits the development, production or acquisition of biological agents or toxins for other than peaceful purposes.

As a practical matter, however, it is difficult to distinguish between treaty-permitted and treaty-prohibited activities. Production of vaccine against botulinum toxin, for example, involves the production of a large quantity of toxin that is then inactivated with a solution of formaldehyde and water. Because the inactivation step takes place late in the production process, an assessment of a state's offensive or defensive intent—that is, whether the agent was produced for peaceful purposes—is essential in judging BWC compliance.

Whatever measures are agreed to in Geneva will be equally binding on all BWC states-parties that ratify the protocol; AHG members must be prepared to accept the same level of intrusiveness they would wish to apply to others. Each nation must therefore find the right balance between monitoring measures that build confidence that others are complying with the BWC, and the need to protect its own industrial and national security information.

New U.S. Initiative For the first three years of the AHG talks, a deadlock among U.S. government agencies over a negotiating position kept the United States on the sidelines in Geneva. Lacking interagencycleared negotiating instructions, the U.S. delegation was unable to play a leading role in the talks or even to circulate substantive policy papers. This protracted deadlock resulted from a strong divergence of opinion and interest among the various agencies involved in making policy for the Geneva talks.

The departments of Defense, Energy and Commerce advocated a less intrusive inspection regime that would exclude random visits to declared facilities and establish fairly strict evidentiary requirements for approving a challenge inspection. Although such a regime would be somewhat less effective in detecting and deterring BWC violations, it would provide greater protections to U.S. biodefense and sensitive military programs and to confidential business information unrelated to treaty compliance. For this reason, the Pharmaceutical Research and Manufacturers of America (PhRMA), the leading trade association for the U.S. drug industry, also supported a less intrusive approach.

On the other side of the coin, the National Security Counci (NSC) favored a more intrusive regime, including some type of nonchallenge visits and a less demanding evidentiary standard for challenge inspection requests, in the hope of increasing the chances of detecting and deterring BWC violations. Because of the major divergence in approach between the two sides, compromise remained elusive.

In September 1997, PhRMA representatives met with members of the NSC staff and insisted that the United States develop a position in order to safeguard the pharmaceutical industry's proprietary interests. But the interagency process remained deadlocked until January 1998, when the United States was preparing to go to war with Iraq over Baghdad's continuing defiance of UN weapons inspectors and concern that Iraq had retained a biological weapons capability in violation of UN Security Council resolutions. The intensifying confrontation exposed an apparent disconnect between the increasingly vocal U.S. concerns over BW proliferation and Washington's lack of leadership at the AHG talks in Geneva. Finally, the political need to address the Iraqi threat pushed senior administration officials to break the bureaucratic logjam. At a highlevel meeting in January, the heads of three key agencies involved in the policy dispute—Secretary of Defense William Cohen, Secretary of State Madeleine Albright and Secretary of Commerce William Daly—hammered out a package of compromise proposals.

This package, released on January 27 in a White House fact sheet, struck a reasonable balance between the competing needs for onsite inspections of suspected BW-related sites and protection of national security and business secrets at U.S. military and commercial facilities. President Clinton announced the new U.S. initiative in his State of the Union address the same day, declaring, "We must act to prevent the use of disease as a weapon of war and terror. The Biological Weapons Convention has been in effect for 23 years now. The rules are good, but the enforcement is weak. We must strengthen it with a new international inspection system to detect and deter cheating."

Nevertheless, the new U.S. proposals are quite vague and many critical details will have to be worked out in the interagency process, which is likely to remain contentious. The highlevel compromise has not changed perceptions within the Pentagon that the BWC is essentially unverifiable and that arms control alone cannot provide an effective response to the BW threat.

 

Outstanding Issues

The major issues in the BWC protocol negotiations can be divided into eight areas: (1) definitions, lists and criteria; (2) declarations; (3) challenge inspections of facilities suspected of a treaty violation; (4) field investigations of unusual disease outbreaks possibly associated with the covert use of biological weapons or an accidental leak from a clandestine development or production facility; (5) non-challenge visits to declared facilities; (6) protection of confidential information; (7) scientific and technological cooperation in the peaceful uses of biotechnology; and (8) the non-transfer of equipment and knowhow needed for the production of biological weapons. The role of confidence-building measures in the BWC protocol is also in the AHG mandate but has not yet been addressed in any detail.

 

Definitions, Lists and Criteria

Because many BW agents have legitimate applications in medical therapy, biomedical research and the production of vaccines, and because biological production equipment is also dualcapable, the BWC focuses its prohibitions on purposes rather than specific agents or technologies. Article I of the treaty bans the production of "[m]icrobial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes." This generalpurpose criterion allows the BWC to prohibit the application of biological and toxin agents for offensive military purposes while permitting their peaceful uses, and it is also intended to be broad enough to capture future technological innovations. For this reason, a state-party could not legally circumvent the BWC by genetically engineering new types of biological or toxin agents.

In Geneva, the Russian delegation has argued that the generalpurpose criterion is too vague and that more precise definitions are needed if inspectors are to make objective assessments of BWC compliance. To this end, Russia seeks de facto to amend Article I, through the protocol, by providing specific definitions of banned activities, agents and quantities. Most AHG members (including the United States) reject the Russian approach on the grounds that precise definitions might create loopholes that BWC violators could exploit. A list of prohibited agents would inevitably be incomplete, and prohibited quantities may vary depending on the ways in which states carry out peaceful activities.

More generally, amending the BWC would exceed the AHG's mandate. A way out of the current impasse might be to leave the broad prohibitions in Article I intact while developing definitions, lists and criteria tied to specific measures in the compliance protocol. For example, illustrative lists will be required so that memberstates know which agents, facilities and activities to declare.

 

Declarations

Most AHG countries, including the United States, agree that BWC parties should be required to submit annual declarations about facilities and activities that are particularly suited for offensive BW purposes, such as facilities that work with hazardous microbes or that contain certain types of aerosol test chambers. By increasing the transparency of biodefense laboratories and dualuse industrial facilities such as vaccine plants, mandatory declarations would make it more difficult for wouldbe cheaters to carry out illicit production at these sites.

There is disagreement, however, over the scope of facilities to be covered by the regime. The AHG must make a trade-off between casting the net wide enough to cover all facilities of potential compliance concern and avoiding an undue burden on the pharmaceutical and biotechnology industries. For this reason, the industrialized countries want declaration criteria that do not capture a large number of Western pharmaceutical plants that are presumably low risk. Yet, developing countries are unlikely to accept a regime that requires them to declare a disproportionate share of their own facilities.

In January 1998, Britain crculated a paper on proposed declaration formats that calls for detailed information not only on specific declarable facilities such as biodefense laboratories but also on nearby buildings at the same site, such as waste treatment plants. The United States objects strongly to this approach because it would penalize sites such as national defense laboratories, which contain many sensitive facilities that are not related to BWC compliance. In the U.S. view, the declaration requirement should cover only those buildings that are directly engaged in activities relevant to the treaty. This difference in approach is linked to Britain's preference for random visits to declared sites, which would be facilitated by more detailed declarations.

 

Challenge Inspections

Nearly all countries in the Ad Hoc Group support the need for challenge inspections of declared or undeclared facilities suspected of violating the BWC, but they disagree on the procedure for initiating such inspections. Here again, delegations face a trade-off between ensuring that challenge inspections of suspicious facilities are approved, and preventing frivolous challenge requests intended as a means of harassment, espionage or theft of trade secrets. Those countries most concerned about pursuing violations favor a "red-light" approval mechanism, in which a majority or supermajority of the Executive Council (the governing body of the future BWC implementing organization) must vote to block a challenge inspection. Conversely, countries most concerned about preventing frivolous or abusive inspections favor a "green-light" mechanism, in which a majority or supermajority of the council must vote to authorize a challenge inspection. Several countries, referring to the precedent set by the Comprehensive Test Ban (CTB) Treaty, have endorsed a green-light filter for the BWC protocol.

The new U.S. negotiating position announced in late January calls for a green-light filter in which a simple majority of the governing body must vote to approve a challenge inspection before it can proceed. PhRMA also favors a green-light approval mechanism (although by a three-quarter majority vote), because this filter would require "probable cause" of a BWC violation before a challenge inspection could proceed—an eventuality that industry assumes would never occur at a legitimate commercial facility.

 

Field Investigations

Russia has endorsed the investigation of alleged use of biological weapons but opposes investigations of suspicious outbreaks of disease, such as might result from the accidental release of BW agents from a clandestine military development or production facility. This position is troubling in light of the fact that just such an accident occurred at a secret military biological institute in the Soviet city of Sverdlovsk in 1979, triggering an unusual outbreak of human anthrax. Moreover, whereas most countries assume that a new international organization will be created to handle BWC declarations and inspections, the Rusian delegation claims that since compliance complaints will be rare, there is no need for a new and costly bureaucracy to handle them. Instead, Moscow seeks to retain the existing procedure under Article VI of the BWC, in which formal complaints of non-compliance are lodged with the UN Security Council. Most countries in the AHG believe, however, that current treaty mechanisms are inadequate. Although the Security Council has the authority to initiate a BWC investigation by a group of experts or an existing international body, it has never done so. Morever, as a permanent member of the Security Council, Russia would have the power to veto any challenge inspection on its territory.

During the January 1998 session of the AHG, the group of NonAligned Movement (NAM) states presented a working paper titled "Investigations: Exclusion of All Natural Outbreaks of Disease." Although this paper appears to accept the principle of investigating unusual disease outbreaks, it stresses the need to distinguish natural outbreaks from those associated with covert BW efforts or accidental release. Further, the NAM paper places the onus on the state requesting a field investigation to provide epidemiological and other evidence that a suspicious outbreak has not resulted from natural causes. Some Western delegations believe the NAM proposal is tautological, because it would require the requesting state to prove in advance what a field investigation would seek to determine. If a greenlight approval process were adopted for field investigations, the political process in the Executive Council would determine the appropriate standard of evidence on a casebycase basis.

 

NonChallenge Visits

The AHG is split over the desirability of nonchallenge visits to declared biodefense and industry facilities relevant to the BWC, which would be selected on a random basis. Countries favoring such visits include most of the countries of Europe (particularly Britain), Australia, Canada, New Zealand and South Africa. These delegations argue that random visits would provide an effective means of checking the accuracy of declarations, enhancing transparency and helping deter the misuse of declared facilities for illicit production. Seeking to achieve these goals through challenge inspections alone would be risky because they may be difficult to trigger, politically sensitive and expensive. In addition, countries favoring random visits point out that the future BWC inspectorate must be kept busy on a day-to-day basis, yet challenge inspections are likely to be rare, high-profile events.

In contrast, the United States and Japan oppose random visits on the grounds that they would burden industry and jeopardize confidential business information but would be unlikely to detect BWC violations, which are far more likely to occur at dedicated clandestine facilities. Countries opposed to random visits argue that a reasonably sophisticated violator could use a declared facility for illicit production without the inspectors detecting anything. Russia, for its part, rejects random visits as part of its overall effort to render itself immune from intrusive inspections under the BWC protocol.

During the AHG's January 1998 session, the Swedish delegation circulated a paper proposing a total of 50 random visits per year. These visits would be divided equally among the five geographic blocs, so that each bloc would receive a quota of 10 visits. However, the NAM states consider equal geographical quotas "discriminatory" and want to base the number of random visits strictly on the number of declared acilities in each state-party. Under the NAM approach, Western countries would probably have the vast majority of declarable facilities and would receive most of the visits.

As a means of either substituting for or complementing random visits, a number of AHG states have proposed a "clarification" process that would make it possible to pursue facilities of BWC concern for which the declared information is inaccurate, ambiguous or incomplete. If a state-party, on reviewing another country's declarations, believes that the country has failed to declare a key facility or defense program or has provided misleading information, it could request a consultation and clarification procedure between the Technical Secretariat and the state-party concerned. Because it is inevitable that declarations will contain errors and omissions, particularly in the early stages after entry into force of the protocol, it is likely that many cases will be clarified without the need for an onsite visit to the relevant facility.

The White House fact sheet released in January rules out random visits of declared sites but proposes two onsite measures short of challenge inspections. First, BWC parties would be encouraged to allow a "voluntary visit" at a declared facility. These visits would be at the discretion of officials of the facility in question, who would also have the right to manage the inspectors' access to sensitive areas of the site. The second U.S. proposal is that BWC parties would be required to accept a "reasonable number" of visits by a multinational team from the BWC implementing organization to "clarify an ambiguity, anomaly, omission or other issue related to their annual declaration." While such clarification visits could not be refused by the host country, they would be distinct from challenge inspections, which require a formal allegation of non-compliance. The option of requesting a clarification visit would make it more difficult for countries to cheat by not declaring facilities involved in proscribed activities.

During its January 1998 session, the AHG flagged two unresolved issues about clarification visits. First, should these visits be confined to declared facilities or should they apply to undeclared facilities as well? Even without evidence of a BWC violation, a clarification visit might be triggered by the failure to declare a relevant facility.

Second, who should have the right to initiate a clarification visit? All of the countries that support clarification visits endorse the idea that memberstates should be able to request them, but a subgroup (led by Britain) argues that the BWC implementing organization should also have the ability to call for and conduct clarification visits. If, for example, the organization's Technical Secretariat believes that a member-state has not provided accurate information about a relevant facility, it might submit a request for a clarification visit to the Executive Council. Some countries object to the British proposal on the grounds that if the Technical Secretariat has the power both to raise compliance concerns and to conduct inspections, it could find itself in a conflict of interest that could compromise its political neutrality.

Although the United States has proposed clarification visits as an alternative to random visits, the Western Europeans (together with Australia, Canada, New Zealand and South Africa) argue strongly for the desirability of both types of visits, which might differ with respect to timelines and the permitted use of sampling and analysis techniques. The Western group of states plans to meet before the next AHG meeting in early March in an attempt to hammer out an agreed position on nonchallenge visits, but it is likely that the tug-of-war over this issue will continue for some time.

 

Protection of Confidential Information

AHG members agree on the importance of protecting industrial trade secrets and national security information unrelated to BWC compliance, but they disagree on how to achieve this objective. In addition, the $100 billion U.S. pharmaceutical industry, the world's largest and most advanced, has serious concerns that onsite inspections under a compliance protocol could open the door to industrial espionage. PhRMA, which represents the largest U.S. drug manufacturers, contends that because the development of new medications is highly research intensive, pharmaceutical companies have far more valuable proprietary information at stake than makers of commodity chemicals. Since drug companies routinely invest millions of dollars to develop and test new medications, genetically engineered production micro-organisms and manufacturing processes, any inspection regime must include measures to safeguard proprietary information. To give but one example, the DNA sequences contained in the genetically engineered micro-organism that produces human insulin have been valued at more than $1 billion.

Many AHG countries endorse the concept of "managed access" devised for the Chemical Weapons Convention (CWC), in which the inspection team and the host country negotiate the amount of access to be provided to sensitive areas of the inspected site. For example, facility managers might turn off computers, lock up documents, place cloth shrouds over sensitive items of equipment and specify where samples may be taken. In return for such limits on access, the inspected party would make "every reasonable effort" to provide alternative means of addressing the inspectors' compliance concerns. Some countries are also pushing for greater restrictions on access during facility inspections. At the September 1997 AHG meeting, Pakistan attacked the concept of managed access and proposed instead a more restrictive approach it termed "negotiated access." Referring to the precedent of the CTB Treaty, Pakistan called for restricted zones in which no access at all would be provided. China and Russia have also called for greater restrictions on access.

In an attempt to reassure the U.S. pharmaceutical industry, the White House fact sheet stresses that the United States will insist on "strong provisions" in the compliance protocol to protect confidential business information and constitutional rights, including the use of managed-access procedures and appropriate timelines. PhRMA, however, has been somewhat critical of the new initiative. According to Gillian Woollett, the association's assistant vice president for biologics and biotechnology, because a company's reputation could be seriously damaged by an unfounded allegation, a state-party must have a legitimate case before being allowed to request a clarification visit to a pharmaceutical plant. PhRMA also fears that hostile states could request clarification visits of industry facilities as a means of harassment—perhaps in retaliation for a challenge inspection—or industrial espionage.

Part of the problem is that PhRMA was not consulted during the development of the new U.S. negotiating position, exacerbating the lack of trust between the pharmaceutical industry and the NSC staff coordinating biological arms control policy. A positive model for industry involvement is the constructive role played by U.S. and other Western chemical industries during the negotiation of the CWC, which entered into force in April 1997. In 1978, the U.S. delegation to the talks had the farsighted idea of inviting representatives from the Chemical Manufacturers Association (CMA), the leading U.S. chemical trade association, to advise it on issues affecting the chemical industry. This relationship continued for several years and built a sense of trust and confidence on both sides. Other chemical trade associations from Australia, Western Europeand Japan also advised their respective delegations during the negotiations. As a result of CMA's extensive involvement in shaping the CWC's provisions on managed access and confidentiality, the association pledged its "unqualified support" for the treaty. This strong endorsement by the U.S. chemical industry later proved crucial in obtaining the Senate's advice and consent to ratification of the convention.

Until fairly recently, the NSC staff has not followed the positive example of the CWC by engaging the pharmaceutical industry on the BWC protocol. Instead of vetting ideas cooperatively with industry and developing a national outreach effort to educate company executives about the need to strengthen the BWC, the White House has largely excluded the pharmaceutical industry from the negotiating process. As a result, an antagonistic relationship has developed between PhRMA and the U.S. government—one that, unless repaired, could well derail the future ratification of the BWC protocol in the U.S. Senate. Although the NSC staff has recently taken some positive first steps to reach out to the pharmaceutical industry, much more work will be needed to build a cooperative relationship.

 

Technical Cooperation

The developing countries in the NAM group are most interested in Article X of the BWC, under which parties undertake to exchange biotechnology knowhow, materials and equipment for peaceful purposes. Indeed, developing countries that do not face an immediate threat from biological weapons tend to view the benefits of the compliance protocol primarily in economic rather than security terms.

The industrialized countries argue that the compliance protocol is not an appropriate framework for providing assistance in the peaceful uses of biotechnology. They do, however, favor providing expertise and infrastructure for effective implementation of the protocol. Possible areas of cooperation include biosafety and public health, such as improved epidemiological surveillance of emerging infectious diseases.

 

Non-Transfer

Several countries in the NAM group, including Brazil, China, India, Iran and Pakistan, want to eliminate controls on trade in biological pathogens and production equipment among BWC parties on the grounds that such restrictions are redundant and discriminatory. The chief focus of the NAM's ire is the Australia Group, an informal mechanism that enables 30 industrialized countries to harmonize their national export controls on chemical and biological weapons-related materials and production equipment. These trade controls are targeted specifically against countries suspected of producing biological weapons, including some BWC member-states.

The NAM countries would like to replace the Australia Group with a multilateral regime under the compliance protocol that would restrict trade solely with nonparties. According to a recent proposal by India, all parties to the BWC would have access to controlled biological pathogens andproduction equipment, with the sole proviso that they fill out an enduser certificate. Moreover, the only grounds for denying a stateparty access to sensitive technologies would be if the BWC organization finds the country in violation of the treaty. The Western industrialized countries, for their part, contend that the continued existence of the Australia Group is essential if they are to meet the non-transfer obligations in Article III of the BWC, which requires states-parties not to transfer, directly or indirectly, any of the agents, toxins, weapons, equipment or means of delivery banned by the treaty. While the export controls harmonized by the Australia Group are sometimes circumvented, they have generally played a useful role in impeding the ability of known proliferators to import dangerous biological agents and dual-use production equipment. Thus, Australia Group members are determined to resist efforts by the NAM countries to weaken Article III.

The contentious issues of technical assistance and nontransfer remain highly politicized and are unlikely to be resolved anytime soon. Such NorthSouth disputes have become increasingly prominent in multilateral arms control negotiations since the end of the Cold War, and center around differences of national interest between developed and developing countries with respect to trade in sensitive dual-use technologies.

 

Prospects for the Geneva Talks

The prospects for the AHG negotiations are mixed. Although the group has taken the important step of moving to a rolling text, the draft treaty is rife with disputed language and consists largely of parallel, mutually incompatible approaches rather than consensus text. Once the language of the rolling text has been converted into the appropriate legal format, the AHG will begin seeking compromise approaches to remove the brackets. Given the sharply divergent views among delegations, however, this will be a challenging task. Indeed, some countries are even objecting to "boilerplate" language that has already been incorporated into the CWC and the CTB Treaty.

The belated U.S. adoption of a negotiating position, however sketchy, should enable the U.S. delegation to play a more active role in Geneva, giving some impetus to the negotiations. Even so, the agreements reached among the departments of Defense, State and Commerce and the NSC staff are still at a high level of generality, and much additional interagency bargaining will be needed to develop more detailed proposals. For this reason, the chronic interagency conflicts within the U.S. government will probably continue to hamper progress in the AHG.

Given the numerous hurdles facing the negotiations, it is difficult to predict when the AHG will have made enough progress for national policymakers to set a firm deadline for concluding the protocol, moving the talks into the endgame phase. As has occurred with other multilateral treaty negotiations, such as the CWC and the CTB Treaty, at some point the chairman will prepare a "vision text" without brackets that seeks to broker workable compromises on all the key points of contention. After the vision text has been developed, several more months of negotiation may be required to conclude the treaty.

Before a vision text of the BWC protocol becomes possible, the rolling text will have to be mature, with all of the issues fully addressed in legal language. That goal is not likely to be reached for at least another year. The chairman will also face a problem of political timing, that is, how long to wait for national delegations to resove contentious issues before putting forward his own compromise proposals. Resolving the increasingly polarized debate over Article X, in particular, is likely to pose a formidable challenge to Ambassador Tóth's diplomatic skills.

In the current situation, it would take a major leap of faith for the chairman to move directly from the current muddle of brackets to a clean text. Thus, later this year Ambassador Tóth may ask the various FOCs to prepare compromise language for the less contentious sections while highlighting the "hotbutton" issues that remain to be resolved, such as random visits and redlight versus greenlight approval filters. These substantive policy issues might be broken out into alternative sections of treaty text. The chairman would then seek to broker trade-offs among the various hotbutton issues, with the ultimate goal of weaving together an overall vision text of the protocol that is acceptable to all delegations. During the CTB negotiations, for example, countries differed over the percentage vote within the Executive Council needed to approve a challenge inspection: one group proposed 51 percent, another 75 percent; they compromised on 60 percent.

 

Lessons From Iraq

Fortunately, many countries in the Ad Hoc Group now recognize the urgency of strengthening the BWC in light of Iraq's production of BW bombs and missile warheads prior to the 1991 Gulf War, and the attempted terrorist use of anthrax and botulinum toxin by the Japanese doomsday cult, Aum Shinrikyo. The highly intrusive "anywhere-anytime" inspection regime imposed on a defeated Iraq by the UN Security Council also provides some useful lessons for a future BWC compliance regime.

Although the inspections conducted by the UN Special Commission (UNSCOM) are far more intrusive than any conceivable negotiated regime, they have triggered a "theological" debate about the value of inspections. Critics argue that the inability of UNSCOM to find a "smoking gun" (such as filled biological munitions) demonstrates the limitations of inspecting biological weapons facilities, which are either easily hidden or dual-use and hence ambiguous. Admirers of UNSCOM counter that the commission has been remarkably successful at determining the full scale and scope of the Iraqi program through persistent detective work, despite a systematic effort by Baghdad to conceal evidence and limit access.

In particular, UNSCOM has demonstrated that auditing of plant records can be a powerful tool. The inspectors managed to uncover a shipment of 17 tons of imported bacterial culture medium that the Iraqis could not account for, providing strong circumstantial evidence for large-scale production of BW agents. UNSCOM staff have also made effective use of interviewing Iraqi officials to identify inconsistencies and poke holes in cover stories.

Although the AHG has now taken the significant step of moving to a rolling text, much clearly remains to be accomplished. The current relatively calm period of international relations offers a window of opportunity for transforming the BWC from a gentleman's agreement into enforceable international law. If this historical chance is lost or squandered, it may not recur for a long time.

 

For Further Reading

Cole, Leonard A. The Eleventh Plague: The Politics of Biological and Chemical Warfare, New York: W.H. Freeman and Company, 1997.

Kaplan, David E. and Andrew Marshall. The Cult at the End of the World: The Terrifying Story of the Aum Doomsday Cult, from the Subways of Tokyo to the Nuclear Arsenals of Russia, New York: Crown Publishers, 1996.

Terrorism with Chemical and Biological Weapons: Calibrating Risks and Responses, Brad Roberts, ed., The Chemical and Biological Arms Control Institute, 1997.

Biological Weapons Proliferation: Reasons for Concern, Courses of Action, Amy E. Smithson, ed., The Henry L. Stimson Center, Report No. 24, January 1998, 136 pp.

Tucker, Jonathan B. "Putting Teeth in the Biological Weapons Ban," MIT's Technology Review, January/February 1998, pp. 38-45. (http://web.mit.edu/techreview/www/articles/jf98/tucker.html)

 


Verifying the BWC: The Pharmaceutical Industry's View

The Pharmaceutical Research and Manufacturers of America (PhRMA) is the leading trade association for the U.S. pharmaceutical industry. On May 16, 1996, the PhRMA Executive Committee approved a statement supporting the goals and objectives of the Biological Weapons Convention (BWC), noting that a compliance protocol could help reduce the threat from biological weapons. At the same time, PhRMA expressed concern that proposed inspections of dual-capable industry facilities could compromise legitimate confidential business information, harm a company's good name if it were falsely accused of producing biological weapons, and result in onerous implementing regulations.

PhRMA issued a White Paper laying out its preferred approach to the BWC compliance protocol. The basic elements of the PhRMA approach are as follows:

On-site inspections must be limited to challenge inspections based on an alleged BWC violation. In PhRMA's view, visits to declared facilities have a low probability of detection or deterrence and are likely to result in significant costs to the facility, potential loss of confidential business information and adverse publicity.

Allegations that may result in a challenge inspection must be reviewed by a "green-light" approval mechanism. According to this approach, a three-quarter majority of the members of a BWC Executive Council would vote to approve a challenge inspection request on the basis of probable cause of a treaty violation. This approach would block frivolous or abusive requests for challenge inspections that fail to demonstrate probable cause.

"Managed access" must be employed during any on-site inspection. This method entails a negotiated agreement between the inspection team and the host facility with respect to the degree of access that will satisfy the team's compliance concerns, while protecting the site's legitimate proprietary information. The inspected facility must have the final determination of what is proprietary and therefore what information will be shared with the inspection team. Inspection teams must be qualified and the individual inspectors must be acceptable to the inspected state-party.

The pharmaceutical industry has no role in the Article X provisions of the BWC that encourage technology transfer, which are the sole responsibility of the participating governments.

The White Paper concludes that, "PhRMA is anxious to be an active participant and full partner with the United States Government to reduce the threat of biological warfare, while protecting confidential business information that permits our companies to discover, develop, manufacture and distribute solutions to health care problems." —J.B.T.

 


The Australia Group

The Australia Group (AG) is an informal group of 30 states whose mission is to impede the proliferation of biological and chemical weapons by adopting common export controls on relevant materials and production equipment and by sharing information on proliferation programs. The group was formed in 1984 in response to chemical weapons use during the Iran-Iraq War; it has no charter or constitution and operates by consensus. Current members are Argentina, Australia, Austria, Belgium, Britain, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovak Republic, South Korea, Spain, Sweden, Switzerland, the United States and the European Commission (as an observer).

The AG develops lists of hazardous micro-organisms, toxins and equipment that could be used in a biological warfare program, so that export controls can be targeted at known or suspected proliferant states. The AG's Export Control Core List includes 20 viruses, 13 bacteria, four rickettsiae, 10 toxins and genetically modified micro-organisms derived from agents on the core list. In addition, a Control List of Dual-Use Biological Equipment covers a variety of items whose technical parameters make them particularly well suited for the production or testing of germ weapons, including stainless steel fermentation tanks, centrifugal separators, filtration equipment, freeze-drying equipment, biocontainment systems and aerosol inhalation chambers. In tandem with the "harmonized" export control list, the AG distributes to industry an informal "warning list" of dual-use materials and equipment. —J.B.T.

 


Jonathan B. Tucker directs the Chemical and Biological Weapons Nonproliferation Project at the Center for Nonproliferation Studies of the Monterey Institute of International Studies in Monterey, California.