"No one can solve this problem alone, but together we can change things for the better." 

– Setsuko Thurlow
Hiroshima Survivor
June 6, 2016
A Necessary Compromise

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Marie Isabelle Chevrier

In the spring of 1979, the Soviet city of Sverdlovsk (now Ekaterinburg) experienced a deadly outbreak of anthrax. The United States and other countries suspected that the disease was connected with clandestine biological warfare activities—a charge that the Soviets, not surprisingly, denied. At the time, the hands of the United States and other parties to the Biological Weapons Convention (BWC) were tied by the absence of on-site measures in the treaty to investigate disease outbreaks or any other activities or events. The only way to resolve issues of noncompliance allowed by the convention was (and still is) to take concerns to the United Nations Security Council, but had states-parties done so in 1979, the U.S.S.R. would have used its veto power to block any investigation of the anthrax outbreak.

The incident highlighted the weaknesses of the BWC, and the convention's lack of compliance measures became an issue at the treaty's first review conference in 1980. The second and third review conferences put into motion a process starting in 1987 with consultative procedures and politically binding declarations and proceeding in 1992 to an examination of possible verification measures. That process has led inexorably to the compromise text of the chairman now under consideration.

In 1994, the states-parties to the BWC agreed by consensus upon the purpose of the proposed protocol and the mandate of the Ad Hoc Group to negotiate the text. At the insistence of the United States, the purpose of the protocol is to strengthen the effectiveness and to improve the implementation of the convention, not to verify compliance with its obligations. Thus, it is important to judge the protocol on the appropriate criteria. Does it strengthen the effectiveness and improve the implementation of the convention? Does it reinforce the principal obligations of the convention? Does it reflect U.S. security and arms control priorities? Does it protect U.S. equities?

To ask whether the chairman's text perfectly reflects U.S. interests and priorities is simple minded. Of course not. That is not the nature of compromise. To do so would guarantee that other countries would refuse to lend their support to the protocol. To do so would undermine the very basis of multilateral arms control negotiations. But it is appropriate to ask whether on balance the protocol improves or hurts U.S. security, and the answer is clear: The protocol would help to protect the United States by strengthening the global norm against the possession of biological weapons, providing the machinery to promptly investigate allegations of noncompliance, and deterring biological weapons proliferation.

First, the chairman's text supplements and reinforces the principal obligations of the convention never to develop, produce, or stockpile biological or toxin weapons. It does not in any way undermine the brilliance of the general-purpose criterion, which prohibits the possession of existing biological agents and toxins and any that are developed in the future, of types and in quantities that are not justified for a prophylactic, protective, or other peaceful purpose.

Second, the composite text protects and emphasizes the rights of sovereign states to make decisions on the transfer of biological agents and toxins and sensitive equipment that could be used in illegal weapon programs. Indeed, the protocol would require states to undertake "all measures they deem necessary" to make sure that they do not transfer material or equipment into the hands of would-be biological weaponeers. Article 7 of the chairman's text also preserves the right of states-parties to consult with one another regarding transfer policies, a sacred cow of the United States and many others in the Australia Group.

Third, the 1972 BWC is frequently criticized because of the weakness of the articles that establish procedures to address questions of compliance. The United States has long been an advocate of on-site measures to address compliance concerns. The chairman's text establishes the right of each state-party to request on-site investigation of any alleged violation of the convention. The right to request an investigation would allow investigation of diseases like the 1979 anthrax outbreak and also resolve more quickly allegations of misconduct based on deliberate misinformation or flimsy evidence, such as the Cuban allegations that the United States had used biological weapons against it.

Moreover, the details of the chairman's compromise text on investigations reflect many of the priorities of the United States and its allies. The text comes down in favor of the position of the United States and its allies that decisions regarding investigations should come quickly. The chairman's text requires the director-general of the protocol organization to decide within six hours whether an investigation request should proceed to the Executive Council. Similarly, the Executive Council must make its decision on any investigation request within 24 hours. The provisions for on-site activities are broadly comparable to those in the Chemical Weapons Convention (CWC) and are sufficient to ensure effective investigations.

The text recognizes that all possible violations of the convention are not equal. Thus, an investigation of alleged use of BW on one's own territory would proceed unless three-quarters of the Executive Council objected—a so-called red light procedure. In contrast, a request to investigate a facility believed to be involved in developing BW would need approval of the majority of the Executive Council in order to move forward, a "green light" procedure favored by the U.S. pharmaceutical industry. This language is but one of the many ways in which the chairman's text protects both U.S. government facilities engaging in biodefense activities and commercial facilities that are engaged in legitimate and permitted activities from unwarranted intrusion. Managed access applies in investigations, a requirement also identified by U.S. industry.

Fourth, the text retains the best concepts from other arms control regimes, namely an architecture with mutually reinforcing elements: declarations of the most relevant facilities; visits to deter states from using declared facilities for clandestine purposes; and investigations of alleged use, disease outbreaks, and facilities to detect violations of the convention. At the same time, the text represents "new thinking" on arms control by incorporating novel approaches based on U.S. proposals and experience with, for example, the implementation of the CWC. The text contains detailed procedures for clarifying any anomaly, ambiguity, uncertainty, or omission in mandatory declarations. Similar procedures are established to address compliance concerns that may be resolved through consultation and cooperation rather than an investigation. A party to the protocol could choose, at its own discretion, from among several possible routes to resolving compliance concerns.

Many other provisions in the proposed text, large and small, accommodate U.S. interests. The text reduces the declaration burden on the United States by limiting the declarations of facilities involved in biological defense programs to those that are most relevant to the convention. It distributes visits using geographic and other criteria that have the effect of lessening the impact on the United States, which is likely to have more declared facilities than any other country. Of the at most 120 visits that would take place each year worldwide, a maximum of seven could take place in the United States. The text recognizes the right of a state-party to decide the degree of access on all on-site visits to promote transparency. It allows and develops rules for an observer from the state requesting an investigation to accompany the investigation team. It establishes an organizational structure that ensures maximum participation from the United States.

Obviously, the chairman's proposed text does not accommodate all of the U.S. delegation's proposals and concerns. Moreover, the cost of implementing the protocol in the United States is not insignificant. But given the nature of the compliance measures, the cost will be appreciably less than under the chemical weapons regime. Estimating those costs, in any case, is easier than appropriately defining and measuring all of the benefits of the protocol. What value does one place on one fewer country in possession of biological weapons? Or one illegal biological weapons program detected? Or one terrorist group that fails to acquire biological materials or equipment because it does not have state support? All of these benefits logically flow from a strengthened convention.

It should also be remembered that the protocol is only one element of a strategy to control the spread of biological weapons. The BWC protocol is intended to complement, not supplant, U.S. biological defense efforts and national measures to control biological weapons proliferation, and therefore the argument that it could lead to false confidence that the BW threat has been solved is unfounded.

Although the compromise text does not include all the U.S. positions in the negotiations, the U.S. delegation in Geneva has not been able to convince even our closest allies that its proposals are preferable to the chairman's text. Like the United States, our European allies—many of whom would like stronger compliance measures than Washington—are not getting everything they want in the proposed protocol. Neither are China, Iran, or other members of the Non-Aligned Movement. No state or group of states gets everything it wants in a compromise text. Consequently, there was a good deal of grumbling in Geneva at the opening of the latest session of the Ad Hoc Group. It seems everyone, whether they are with national delegations, international organizations, private companies, or nongovernmental organizations, has his own pet peeve regarding the protocol.

Amid the grumbling, however, one hears private, sometimes begrudging, acknowledgment that Tibor Tóth, the chairman of the Ad Hoc Group, has undertaken a Herculean task and perhaps has produced that elusive, delicate balance: a protocol that is the favored child of none but that is accepted at first by a critical mass and ultimately by all. Momentum is building behind the composite text. The European Union has already announced its qualified support of the text, as have key members of the Non-Aligned and eastern European groups, including Canada, South Africa, Brazil, Peru, Poland, Croatia, and others.

If the United States has decided to reject the composite text (as has already been reported in Chemical and Engineering News, but denied by the delegation in Geneva, which maintains that the administration has not yet decided its policy or its strategy regarding the proposed text), what are the alternatives? In other words, the assessment of whether this protocol, on balance, is in the U.S. interest depends on "compared to what?" It is rumored that the United States will seek a new mandate at the convention's review conference this November.

It is difficult to imagine any new mandate that could rally the necessary consensus support. Consequently, the states-parties will have limited options. First, they could abandon altogether the effort to strengthen the convention, which would put the United States in the same position it has been in since 1975: a participant in a valuable but very weak convention. Abandoning the effort to strengthen the effectiveness of the convention would also send a message to would-be proliferators that the convention's parties do not have the stomach for, or are unwilling to pay the price of, a protocol.

Second, states that are willing to support it could proceed with the compromise text with widespread, but less than consensus, support. States that have given qualified support to the text would be sorely disappointed at best in such an outcome. Members of the European Union in particular have made compromises in order to accommodate the positions of the United States.

A third option would be to continue to hammer out additional compromises to bring along reluctant parties based on either the new composite text or the old rolling text, as proposed by China. That would be an endeavor with little enthusiasm and no end in sight.

The United States need not embrace the chairman's text with enthusiasm and glee, but it ought not stall either. If the United States articulated limited objections to the compromise approach of the chairman, there would still be time to seek improvements in the remainder of this session of the Ad Hoc Group and in its four-week session in July and August.

Those who decline to support the compromise text are likely to express considerable rhetoric of regret. It's too bad, they will say; it's a lost opportunity, we could have had legally binding declarations, accompanied by investigations, for example, without all the rest. The chairman, however, is the person in the best position to recognize that in fact we could not have had such a protocol. Other parties to the convention, including our European allies, would not have supported a protocol on that basis, nor would other nations whose participation in a protocol is highly desirable, such as Russia.

Those who actively oppose the composite text, in contrast to the many who express regret that it is not all that it could or should be, should ask where we will be in 10 years without a protocol. The advances in biotechnology and genomics are likely to magnify the already horrifying aspects of the BW threat. Some states out of fear, miscalculation, or malevolence may decide to establish offensive programs. Without a protocol, it is hard to imagine reaching agreement on an effective, multifaceted international system including export controls, robust defenses, and responses to violations to suppress proliferation.

Indeed, if President George W. Bush rejects this less-than-perfect compromise text, it will reinforce the perception that his administration is controlled by those who never saw an arms control treaty that they liked, that his administration is only willing to give lip service rather than leadership to multilateral security efforts. Rejection of the protocol would be taken as compelling evidence that the administration has learned nothing from the global adverse reaction to its Kyoto policy. It would strengthen the argument that the United States is once again intent on a unilateral track, eschewing multilateralism and cooperation to tackle a global problem.

Marie Isabelle Chevrier is associate professor of political economy at the University of Texas at Dallas and a member of the Federation of American Scientists working group on biological weapons verification.