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– Wendy Sherman
U.S. Deputy Secretary of State
June 2, 2022
Tóth Issues Draft BWC Protocol, Reactions in Geneva Mixed
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Seth Brugger

The negotiations to produce a protocol to the Biological Weapons Convention (BWC) took a major step forward March 30 with the release of the "chairman's text"—a draft protocol issued by Chairman Tibor Tóth that contains proposed solutions to all outstanding issues. Delegates began to provide feedback on the text at the start of their negotiating session April 23, with some countries supporting the text but others expressing reservations. (See Executive Summary of the Chairman's Text.)

The release of the chairman's text is the culmination of months of intensive preparation by Tóth, who has conducted private consultations with the delegations on outstanding controversial matters since last July and used the feedback from these discussions to revise and circulate proposed solutions continually.

During the last session, held in February, Tóth compiled all his proposals into one package. Taken as a whole, the package represented a good portion of his chairman's text, although it did not deal with the most contentious issues. With the release of his text, Tóth has gone one step further, putting forward a new draft protocol that tackles all of the outstanding issues, including:

What facilities a state should declare. States-parties have agreed on the need to declare certain facilities, such as "maximum biological containment" facilities and facilities that work with agents listed in the protocol. But the group has differed on whether to require annual declarations from other kinds of facilities, such as "high biological containment" facilities. Behind this disagreement has been the desire of the developing states to have the developed states, which contain most of the world's biological-related facilities, bear the brunt of the declaration-visit regime. For their part, developed states have wanted only to declare facilities "most relevant" to the protocol.

Under the chairman's text, the developed countries would declare a larger number of facilities. But the text contains provisions that would limit the number of facilities that should be declared. For instance, rather than having all high-containment facilities submit declarations, states would only declare these facilities if they were of a certain size and were involved in certain activities, such as vaccine production.

The Ad Hoc Group has also differed on the parts of biological defense programs and the types of defense facilities that should submit annual declarations. Some countries have wanted all defense facilities and activities to be declared; others have wanted to exclude smaller facilities and activities. The chairman's text compromises on this issue by requiring states-parties to submit summaries of all their national biological defense activities while limiting the number of declarable defense facilities and exempting smaller defense facilities from submitting declarations.

How investigations should be launched. Some countries have argued for a strong regime that would allow investigations of questionable activities to proceed unless the Executive Council, the executive body of the protocol's implementing agency, voted to halt them. Other countries, arguing that such a system could facilitate abuse of the right to request an investigation, have wanted investigations to proceed only if approved by the Executive Council.

Tóth's text compromises on this issue by establishing different voting procedures for different types of investigations. For example, a "facility investigation" would not proceed unless a majority of the Executive Council voted for it to go forward. But a "field investigation" of alleged use of biological weapons on the territory of a requesting state-party would proceed unless three-quarters of the Executive Council voted to stop it.

Whether "clarification" visits would be mandatory and whether these visits could be conducted at undeclared facilities. Believing that they would be subject to more clarification visits than Western countries, many non-aligned states have sought to limit the scope of these visits. They have opposed imposing these visits on states or allowing them to apply to undeclared sites. Western states, however, have sought just the opposite in order to strengthen the compliance regime.

The chairman's text includes provisions that would allow states to raise concerns about and consult with other member states on declared facilities or undeclared facilities that meet the requirements for declaration. If questions persist about a declaration or the lack of a declaration after consultations with the state in question, a clarification visit could be imposed if one was not offered first.

What facilities should be subject to "randomly selected transparency" visits. Some states have wanted all declared facilities to be subject to these visits and for the visits to be spread equally among states-parties. Others have wanted the number of visits conducted in a state to be proportionate to the number of facilities that state declared. And others have wanted only certain types of facilities to be visited.

Tóth's text would subject all facilities submitting declarations to these visits and makes the likelihood of a state receiving a visit proportionate to the number of declared facilities in the state. However, it also would limit the number of visits each state and declared facility could receive in a given time period and exempts many large pharmaceutical companies producing drugs and antibiotics from receiving transparency visits at least until the first protocol review conference, which would be held within five years of the protocol's entry into force.

The Ad Hoc Group has also disagreed on the purpose of these visits. Some states have wanted them to help confirm the accuracy of declarations, while others have felt that the visits should only promote transparency. Under the chairman's text, these visits would aim to increase "confidence" in the accuracy of declarations, encourage the submission of accurate declarations, and enhance transparency.

The role of export controls in the protocol regime. To provide an incentive for developing states to join the protocol, the group has long agreed on the need for the protocol to establish robust measures to facilitate trade and cooperation in biotechnology. Many developing states have been concerned, however, that developed states' export control policies would interfere with their ability to take advantage of such provisions. This has led to calls for states-parties to subsume their export controls under a multilateral framework that would be applied uniformly to all states-parties or for a mechanism to review and overturn denials of requests for transfers of biotechnology. Developed countries, however, have contended that any such measures would infringe too much on their national sovereignty and interfere with established export control policies and export control regimes, such as the Australia Group.

Although the chairman's text contains a number of provisions to encourage trade and cooperation among protocol states-parties, it does not include measures that would interfere with national export controls or international export control regimes. It would only require states to review and report on their national export controls within 180 days of when the protocol enters into force for them and to report any subsequent changes in their controls.

Definitions. Some states, mainly Russia, have wanted to define certain terms, such as "agent," contending this would help clarify the range of the protocol's activities. Most others have felt that such definitions would amend the convention's scope, an action that would exceed the group's mandate. As a compromise, Tóth did not define terms such as "agent" or "toxin" but did define the terms "biological and toxin weapons" and "purposes not prohibited by the convention." In his definition of these two terms, he used the same language as the first article of the BWC, thereby avoiding the issue of amending the convention.

Thresholds. Russia, among others, has also wanted the protocol to allow any facility to retain agents listed in the protocol in low quantities, a measure opposed by most other delegations. The chairman's text, in line with the BWC, does not permit or deny states-parties the right to retain agents. Rather, as a transparency measure, it calls upon member states to declare the range of agents that their facilities possess for biological defense purposes. This formula would allow states-parties to retain agents for biological defense but would leave the question of whether a facility's agents are for legitimate purposes to other mechanisms in the protocol, such as inspections.


Initial Feedback From the Delegations

The delegations have begun to discuss the chairman's text at the latest round of the negotiations, which have been held in Geneva several times each year since 1995 to negotiate a legally binding protocol to the BWC. The convention outlaws biological weapons but does not contain verification measures.

In his opening remarks to the session, Tóth acknowledged that his text could not replace the current draft protocol, used as the basis for the negotiations since July 1997, unless agreed by all the delegations. The chairman's text is largely derived from the rolling text, incorporating not only agreed language but also compromises on disputed issues.

In their opening statements, no state-party rejected the text outright, but some expressed reservations. For instance, China said that the text did not "properly" address "quite a number of major outstanding issues, such as clarification visits, decision-making mechanisms of investigations, declaration triggers, and transfers." Beijing added that the text is "discriminatory" and "far from the final agreement" and that "quality should not be compromised for the interest of speed." China, Cuba, and Pakistan all said that the rolling text should remain the basis of the negotiations and that Tóth's text should be viewed as reference material.

Russia asserted that the text contained a number of "unacceptable" elements and warned that it would continue to defend its positions. Iran complained that provisions to review and overturn decisions on the export of biotechnology had not been included and said that the text's release did not necessarily move the negotiations into the endgame. Cuba and Pakistan expressed similar concerns on export controls, with Islamabad adding that the protocol must "establish one uniform and multilateral regime" to govern biotechnology exports.

The European Union, some other members of the Western Group, and some non-aligned countries advocated using the chairman's text as the basis for continuing discussions. The United States has remained quiet during the session's first two days, as the Bush administration is finishing a review of its policy in this area. Despite the U.S. delegation's silence, reports indicate that the administration will not likely come out in favor of the protocol.

The delegations will use the rest of the session, which will conclude May 11, to discuss the chairman's text. Tóth plans to go over his text in detail, receive comments from the delegations, and then consult with them privately. But whether or how Tóth's text will replace the rolling text remains unclear.

The group does not have much time left to conclude its work. It has aimed to complete the protocol in time for the fifth BWC review conference, scheduled to begin November 19, but has only seven weeks of negotiations left before the conference. BWC states-parties are preparing for the conference on the sidelines of the session at a three-day preparatory meeting. That meeting has elected Tóth to chair the conference and has performed other administrative matters such as setting a draft agenda.