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June 1, 2018
Building on Faulty Assumptions

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Michael Moodie

Officials from the United States and other nations are now confronting a critical question: whether the substantive elements of a "vision text" of the protocol to the Biological Weapons Convention (BWC) offered by the chairman of the Ad Hoc Group at the end of March serve their national interests and those of the international community in the fight against the proliferation of biological weapons. As in any multilateral negotiation, a wide variety of interests have been addressed and compromises have been struck. Can the result of these talks, as now represented in the chairman's text, be supported? In making this determination, officials must consider several issues that make support of the draft protocol debatable at best.

No one involved in the Ad Hoc Group negotiations argues that the draft protocol would make the BWC verifiable. Rather, most key participants talk in terms of "bolstering confidence in compliance" with the convention. But is bolstering confidence a sufficient outcome? Does this particular draft protocol achieve even that outcome?

The logic on which the BWC protocol is based rests on assumptions that are not often rigorously scrutinized and are not as self-evident as they might first appear. Four assumptions in particular should be questioned.

Does Deterrence Hold? Proponents of the draft protocol argue that its provisions, although not achieving verification, nevertheless help deter BW proliferation. Is this assumption correct?

Deterrence of an undesired action is based on convincing the actor contemplating such an action that it is not in his interest to proceed because the benefits to be gained are not sufficient, the costs are too high, or both. Those who argue that the draft protocol's declarations-visits package will help deter would-be BW proliferators contend that enough anomalies, ambiguities, and discrepancies will be discovered and will come under the scrutiny of the international community. Such engagement and scrutiny poses a risk that prohibited activities will be discovered and that the country in question will then face costly consequences when its violations come to light.

None of this may be true. Even indications of activities inconsistent with or in violation of the BWC, let alone direct evidence of such violations, may not be identified. This is the case for four reasons: First, violators of the treaty will not declare their illegal activities or the facilities at which such activities are occurring. The draft protocol specifies so few total visits annually and such a limited number of visits for any one country or facility that it may, in fact, be difficult to develop the "mosaic" that serves as the baseline from which unusual behavior can be distinguished. Second, facilities asked to host visits will be randomly selected. The probability of a state receiving such a visit will be proportionate to the number of facilities it declares. Developed countries, which have the greatest number of facilities but are not countries of concern with respect to BW proliferation, will therefore host more visits. Third, activities at the visited facilities are under the total control of the visited party; they can show the visiting team only what they want it to see. Fourth, committed proliferators will have concealment and deception programs that will both direct visiting teams away from suspect behavior and provide cover stories if such behavior is observed. The cases of Iraq, the Soviet Union, and North Korea show the extent to which countries engaged in proliferation will attempt to conceal their activities, and there is no reason to think that countries that are either currently working on BW or contemplating it have not learned those lessons.

Even if ambiguities, anomalies, and discrepancies come to light, it will be difficult to create an international consensus in favor of further action. Historically, the country in question has often been given the benefit of the doubt, particularly if it sticks tenaciously to its story. Robustly following up questions is frequently seen as too diplomatically and politically sensitive. If the concealment and deception program is well conceived, the international community will find it difficult to conclude that a treaty violation has occurred. All the proliferator has to do is maintain sufficient ambiguity to prevent definitive judgments. This is easier with respect to the BWC than other treaties because violations turn on intent, and, given the nature of activity in this area, it is often very difficult to ascertain the actual purpose a particular activity is meant to serve.

Even if noncompliance is determined, must cheaters worry about paying a high cost for their violations? Again, the historical record suggests they do not. The most the international community seems to ask of a cheater is to return to compliant behavior. Few if any economic or political costs have been imposed on countries that have been found to be in blatant noncompliance with their treaty obligations. So what cost does a proliferator anticipate that is so high that it deters him from going ahead?

It is difficult to conclude, therefore, that the logic of deterrence works in the case of the draft BWC protocol. The risks of discovery of noncompliant activity are uncertain at best; the ability to reach definitive conclusions about noncompliance is questionable (especially if the proliferator handles the situation adeptly); and the potential costs for noncompliance are not convincingly high.

Is Focusing on the "Most Relevant" Facilities Enough? Meaningful BW-related activities can be conducted in small facilities. Moreover, BW production uses processes and equipment similar to a wide range of legitimate commercial and scientific endeavors. Many such facilities—breweries and yogurt makers are the most frequently cited—would be very difficult to include in any global security agreement. Further, the BWC covers activities related not only to humans, but also to plants and animals. Therefore, facilities that deal with both the health of and commercial activities related to plants and livestock are also potentially important to the BW challenge. As a result, the number of potentially BW-capable facilities is enormous. The approach taken in the protocol, therefore, does not attempt to cover all potentially relevant facilities, only those that are deemed "most relevant," such as facilities at which biodefense activities are undertaken or that work with particular agents and equipment.

The decision not to attempt to include all BW-capable facilities had to be made because the political and economic costs of doing otherwise were not sustainable. Acknowledging that all facilities cannot be covered, however, ensures that uncertainty regarding potential BW-related activity remains unbounded. States-parties will continue not to know what they do not know, and there will be no way for them to find out except possibly through investigations, which will mostly rely on information from intelligence gathered outside the protocol framework. If all of the BW-capable facilities are not captured, leaving much doubt about what is going on, then how much confidence does the declarations-visits package actually create?

Is this conceptual shortcoming severe enough to conclude that the draft protocol should not be approved? That is for policy-makers to decide. But one could argue that the fight against BW proliferation must focus continually on what we do not know. The approach in the protocol seems to shift the focus to what we do know. That is looking in the wrong direction.

What Is the Right Balance Between Security and Assistance Provisions? The chairman's draft protocol includes significant provisions to promote assistance and cooperation in the use of biotechnology for peaceful purposes. These provisions reflect the interests of many states-parties that have been unapologetic in arguing that cooperation and access to technology are for them the major benefits of joining the regime. Many of these cooperation and assistance measures are, in and of themselves, important—for example, requiring states-parties to support an international system for global monitoring of emerging infectious diseases.

But the question is whether it is appropriate that these elements be included in an agreement that is, at its core, about a specific security challenge. And should the technical secretariat of the organization created to implement the protocol be given such significant responsibilities in this area, given the limited amount of manpower and money that will likely be available for implementation?

One response is that Article X of the BWC requires cooperation and assistance for peaceful purposes and that these measures spell out what states-parties must do in this area. This is true. But if cooperation and assistance provisions are the primary interest of many states-parties, will those states not give priority to how effectively those provisions are being implemented rather than to the compliance-enhancement measures? The Chemical Weapons Convention (CWC) implementation experience suggests that those involved in implementation—whether in The Hague or in the national capitals of states-parties—can lose sight of the core function of the agreement. That risk appears very high here.

Another response might be that those who suggest there is an imbalance between the security and assistance provisions in the draft protocol define security too narrowly. With the end of the Cold War, a number of new issues, including the challenge of infectious diseases, must be seen to be part of the contemporary security agenda. This is true. But it would be unwise to attempt to overload a single policy tool with a broad set of objectives that it is unlikely to bear successfully. If the protocol—and by extension the BWC itself—is made to serve as a means for addressing the infectious disease challenge in addition to the full range of BW proliferation issues, it risks doing neither task well. It would spread limited resources over too broad a span of responsibilities. More importantly, it would create either confusion or competition among priorities.

A further argument in support of the cooperation and assistance provisions is that they are necessary to garner political support for the entire protocol. Without these provisions, the non-aligned states in particular would not join the necessary consensus, thus risking the compliance measures. These countries have made it clear that cooperation and assistance is the price that must be paid for their support. But there is another political argument that cuts in the other direction. In the United States, which will have to pay 20-25 percent of the total costs of implementing the protocol, it will be hard to convince legislators, who are already skeptical of the BWC, that public monies should be committed for these purposes in the context of a non-proliferation agreement.

Moreover, although the Ad Hoc Group's mandate required Article X provisions to be included in the protocol, meeting that requirement did not necessitate bringing together both compliance and assistance measures in a single package or that their implementation be combined under a single rubric. It probably would have been better to find a creative solution for separating the two sets of measures because the benefits of cooperation extend well beyond the field of weapons.

How Useful Are the Compliance Measures? Some people are likely to criticize details of the procedures for conducting investigations, such as the very complex decision-making process for either blocking or initiating a facility investigation. Most problematic in this regard is the requirement that a majority of members of the implementing agency's executive body vote in favor of a requested facility investigation before it can proceed. It should be the other way around—the investigation should proceed unless a significant vote is taken to block it. Timelines are another questionable detail. Allowing 108 hours for investigators to arrive at the perimeter of a facility is excessive when, in the view of some experts, a site can be cleaned up in 48 hours.

Although these and other measures detailing how investigations would be conducted are questionable, the ability to get investigators to the scene of activity of concern is probably the most valuable element of the draft protocol. In that, these measures are similar to the challenge inspection provisions of the Chemical Weapons Convention. In the four years that the CWC has been in force however, a challenge inspection has never been requested, despite publicly voiced concerns about the noncompliance of some states-parties. If the most important CWC provisions have never been used when there are clear reasons for doing so, what confidence do we have that an investigation under the BWC protocol would ever be launched?

With respect to the declarations-visits package, if it does not really promote deterrence, what is its purpose? The answer is that transparency leads to enhanced confidence. But how good a picture of such activities can you get, given the specific provisions of the protocol? The answer depends on the level and kinds of activity and where those activities occur.

The protocol calls for a maximum of 120 visits per year, with between 60 and 80 of these visits comprised of "transparency visits." The balance is made up of either "clarification visits" or "voluntary assistance visits." Where would these transparency visits occur? All the text says is that they will be selected randomly in proportion to the number of facilities declared. No specific formula is identified. One must assume, therefore, that because the vast bulk of the relevant facilities are located in developed countries, they will receive at least half, if not more, of the transparency visits—between 30 and 40, and probably more. In addition, no state could receive more than seven such visits per year, and one facility could not be visited more than three times every five years.

How much transparency regarding states of concern will this system yield? Fewer than 40 visits per year should be expected in the developing world. Many countries will rarely be visited in a five-year time frame.

Will the information provided present a detailed enough picture? And if the picture is limited, will not the confidence that the system is intended to generate also be limited? Some people might argue that the system is sufficient because biological-related activities outside the developed world are not extensive. Focusing on developed states because that is where the most facilities are may be nondiscriminatory and therefore serve a political purpose, but it does not promote activity directed toward the core purpose of the BWC. It is a bit like looking for one's lost keys under the lamppost because that is where the light is—i.e., mostly visiting facilities in developed countries because that is where they are, not because that is what is most needed.


Final Thoughts

It is difficult to avoid the conclusion that, as a total package, the chairman's draft protocol falls short of even the limited objective of bolstering confidence in compliance with the BWC. To argue that the draft is difficult to support, however, also requires one to address what damage might be done if the draft protocol is not approved. Will a failure of the protocol negotiations do irreparable damage to the fight against BW proliferation? Does it show that the international community does not give that challenge sufficient priority to overcome strongly held national interests, thereby condemning the world to increasing dangers from the spread of such weapons?

There is nothing inevitable about such an outcome. Indeed, this outcome must not be deemed acceptable. In the short term, the inability to produce a protocol supported by consensus is certain to create bad feelings, particularly toward the United States if it is seen as the cause of the failure. Such a situation would make it very difficult for Washington to take the lead on other steps that might be useful to deal with the BW problem. Therefore, if the United States cannot support the protocol, it must identify other measures to fight BW proliferation and work to secure the support of the international community for them.

This particular protocol does not provide an adequate road map for the way forward in the fight against biological weapons. Perhaps in the thickets of the negotiations, clarity was lost about the destination. The journey toward the goal must still be made, but it needs to take a different direction.

Michael Moodie is president of the Chemical and Biological Arms Control Institute, and as assistant director for multilateral affairs in the Arms Control and Disarmament Agency from 1990 to 1993, he was responsible for biological and chemical arms control.