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Former IAEA Director-General
BWC Ad Hoc Group Meets With 'Mixed' Results

Seth Brugger

The Ad Hoc Group of states party to the Biological Weapons Convention (BWC) ended its first session of the year February 23 with some progress on major outstanding issues but without Chairman Tibor Tóth issuing a "chairman's text," which appears necessary to help resolve the most contentious matters.

Summarizing the session's results as "mixed," Tóth said in his closing remarks that the negotiations are in an "extremely difficult phase" but that a "prevailing constructive mood" has emerged. Tóth had been expected by some to issue his text—which will contain proposed solutions to outstanding issues and could replace the current draft protocol—in time for this session. However, the chairman reportedly held off in large part to give the new Bush administration time to conduct a review of U.S. policy on the protocol.

Led by Ambassador Donald Mahley, head of the U.S. delegation, the review began in February after the end of the latest session and is reportedly due for completion at the end of March. According to a senior U.S. official, it is a "fundamental review" that will make recommendations to the administration on how to proceed.

The Ad Hoc Group has met a number of times each year in Geneva since 1995 to negotiate a legally binding protocol to strengthen the convention, which outlaws biological weapons but contains no verification mechanisms.

During the latest session, which began February 12, the group made some progress on resolving certain long-outstanding verification-related issues. According to the U.S. official, the delegations took steps forward on accepting the concept of having "transparency visits" being done on a random basis and deciding whether "clarification visits" should be allowed at undeclared facilities or restricted to declared facilities.

They also progressed in their deliberations on initiating inspections. According to the official, "It's probably the first time in a year that subject has been brought up and anybody has had a constructive discussion of it."

However, other highly disputed issues remain unsettled. One such topic is whether states-parties should be able to maintain national export controls or whether such controls should be part of a multilateral framework applied uniformly to all states-parties, the U.S. official said.

As part of this debate, China, Cuba, India, Indonesia, Iran, Libya, Mexico, Pakistan, and Sri Lanka have called for the establishment of a panel that would have the power to review and overturn denials of requests for biotechnology transfers. Western states, including the United States, oppose such measures, asserting that such a regime would infringe too much on their national sovereignty and interfere with established national export controls.

The delegations also disagree on what types of facilities should submit declarations. According to the U.S. official, Washington wants to ensure that the protocol is not ambiguous about which facilities should be declared. It is also "adamant" that "the declaration of facilities should not be limited to the United States or Western countries."

However, others see the United States as trying to limit the number of facilities covered by the protocol in order to protect its national laboratories and biotechnology industry. While the U.S. position is supported by some non-aligned states, the European Union and other non-aligned countries want a more inclusive protocol regime. Although they differ on the details, these states argue that the more facilities the protocol covers, the stronger the regime.

Time is running short to resolve these issues. The group has aimed to complete the protocol by the fifth BWC review conference, but it has only seven weeks of negotiations scheduled before the conference starts on November 19.

To move forward on the disputed issues, Tóth has been conducting private informal consultations with the delegations for the past three sessions. During the last two sessions' consultations, the delegations presented their views to Tóth on various unresolved issues. This session, these discussions advanced to a "second generation," where the chairman presented his view of the situation, suggested possible ways forward, and collected more feedback, the U.S. official said.

Tóth has used this feedback to continually revise proposed solutions that he has been circulating since the previous session, held November 20-December 8. For the first time, during this session, Tóth put his proposals together as a package and circulated them for further comment. Although they do not tackle the most controversial issues, taken as a whole, the proposals appear to make up a good portion of what will become Tóth's chairman's text.

At the beginning of the session, Iran and China suggested that they would have reservations about the issuing of a chairman's text. However, at the end of the session, they did not openly object, and Tóth is reportedly likely to issue his text in time for the next session in April. The U.S. official said that Washington does not yet have a policy on the issuing of the text since the U.S. review is considering the issue.

Whether the chairman's text will replace the current draft protocol will depend on "the persuasive ability of the chairman, how close he's come to something which everybody can accept, and the mood of the negotiators," the U.S. official contended, adding that the text would not likely be open to many changes if adopted as a draft protocol.

At the end of the session, Tóth encouraged the delegations to review his proposals during the intersessional period and to explore further areas for compromise. He warned that, notwithstanding the prevailing "constructive spirit," the session's achievements, and "the readiness to move forward, the process is facing challenges as a result of the extremely limited amount of time available." He said that, if the group did not exercise "the necessary flexibility," then it might fail. The Ad Hoc Group is scheduled to meet again from April 23 to May 11.