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I salute the Arms Control Association … for its keen vision of the goals ahead and for its many efforts to identify and to promote practical measures that are so vitally needed to achieve them. -

– Amb. Nobuyasu Abe
Former UN Undersecretary General for Disarmament Affairs
January 28, 2004
U.S. BWC Protocol Policy Still Unclear With Talks Short on Time

Seth Brugger

Three months after the release of a chairman’s draft of a protocol to the Biological Weapons Convention (BWC), the United States has yet to announce its position on the text. Although the administration has chosen to remain silent until it finishes conducting a protocol policy review, press reports and testimony by two senior administration officials suggest that Washington may reject the protocol.

BWC states-parties, including the United States, have met multiple times each year in Geneva since 1995 to negotiate a legally binding compliance protocol to the convention, which outlaws biological weapons but does not contain verification measures. In late March, the chairman of the negotiations, Ambassador Tibor Tóth, issued his version of the protocol, known as the “chairman’s text,” which contains compromises on long-outstanding issues.

Under the leadership of Ambassador Donald Mahley, the head of the U.S. delegation to the negotiations, the administration has been reviewing its protocol policy since February. It has not made any of the review’s details public yet, but The New York Times reported in May that an interagency review team had found 38 problems with the protocol and recommended that the White House reject the chairman’s text.

A House Government Reform subcommittee invited Mahley and Owen James Sheaks, assistant secretary of state for verification and compliance, to testify on the protocol June 5. The administration declined to send Mahley and Sheaks to testify in person, apparently seeking to maintain a low public profile on its protocol policy, but the two officials did submit written testimony.

In his comments, Mahley stressed that the United States “unreservedly” supports the BWC but that Washington has “serious substantive concerns” with the chairman’s text. He also said that the United States does not share the position of other countries that the fifth BWC review conference, scheduled to begin November 19, is a deadline for completing the protocol negotiations. Rather, Washington views the conference as a “target.”

But Mahley acknowledged that, if there is “no sense” during the conference that a protocol is “in sight, we can expect a very troublesome review conference, with some bitterly fought attempts to incorporate national views” into the conference’s final document. The United States is weighing the consequences of such an outcome in its review.

Although Sheaks recognized in his testimony that the Clinton administration’s goal during the negotiations had been to promote transparency, he said that he would not address “the level of transparency achieved” by the chairman’s text or “the potential value of that transparency.” Instead, Sheaks focused almost all of his testimony on how the protocol is not verifiable.

Sheaks said that, under the protocol, countries would only declare a “small fraction” of their facilities that could “potentially be used for offensive biological warfare purposes.” He added that states with offensive programs would not declare facilities with illicit activities or would “embed” these activities “beneath an effective cover of legitimate biological activity.” These loopholes, and the fact that “illicit work” could “easily be concealed or cleaned up” at visited facilities, would undercut the verifiability of the declaration-visit regime set out by the protocol. (See ACT, March 2000.)

Sheaks maintained that “challenge investigations could help to deter cheating” but added that they have “inherent limitations,” such as the time it takes to approve a request for an investigation and place an investigation team on-site. These delays “would likely permit more than enough time to clean up or otherwise conceal evidence of a BWC violation.” He further contended, “The dual-use nature of biological activities and equipment could readily be exploited by a violator to ‘explain away’ any concerns, with ‘managed access’ rights available as a last resort to deny access to any incriminating evidence.”

In an effort to sway the Bush administration’s apparent opposition to the protocol, Tóth met with senior State Department officials and National Security Council staff in Washington on May 22. According to State Department spokesman Philip Reeker, the administration shared some concerns it has and reaffirmed that, after completing its review, it would work with Tóth to “develop a strategy to move forward” during the next negotiating session.

The European Union and Russia also recently targeted U.S. protocol policy. The European Union parliament passed a resolution June 14 that noted “with concern” reports that the U.S. review had recommended rejecting the chairman’s text. It invited the European Union Council to discuss the protocol with President George W. Bush during a mid-June summit in Sweden.

According to a Swedish official, the protocol was not brought up with Bush because it has been raised using other avenues and because other items, such as missile defense and missile proliferation, filled the summit agenda. He added that the European Union has contacted Washington on this issue with increasing frequency over the past two months through senior embassy staff.

The Russian Foreign Ministry issued a statement June 26 that also expressed “concern” over reports that Washington might reject the protocol. It added that adopting the protocol “this year” is “realistic” and that the protocol “must become a major instrument strengthening the regime for the prohibition and nonproliferation of biological weapons.”

The Geneva Negotiations

Consistent with its low profile on the protocol, the U.S. delegation to the protocol negotiations in Geneva remained largely silent during the latest negotiating session, held April 23-May 11. The resulting lack of clarity on the U.S. position has taken its toll. According to one official in Geneva, “Without knowing what the U.S. is going to do, I think a number of countries—China, et cetera—are reluctant to say, ‘Yes, we will negotiate on the [chairman’s] text.’”

Whether the delegations would accept the chairman’s text as an official platform for the negotiations has been a question ever since Tóth released the text March 30. During the last session, many countries supported using the text as the basis for the negotiations. However, a few countries, such as China and Iran, while tacitly agreeing to discuss the text, have not been willing to endorse it as the basis for negotiations.

During meetings held the final week of the session, Tóth identified and discussed areas where the delegations have substantive differences. According to the Geneva official, the talks focused mainly on the long-controversial topics of declarations, visits, and investigations, but many delegations simply repeated their previous positions, resulting in a lack of compromise.

“Delegations were still dancing around each other. Nobody wanted to make the first move by saying, ‘I’ll give up my national position here if you do the same here,’” the official said.

The group will meet again from July 23 to August 17, its last session before the BWC review conference in November.