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

– Setsuko Thurlow
Hiroshima Survivor
June 6, 2016
The Limits of Modest Progress: The Rise, Fall, and Return of Efforts to Strengthen the Biological Weapons Convention

John Borrie

Next month, Biological Weapons Convention (BWC) member states will gather for a review conference five years after a previous meeting dissolved amid acrimony. So far, the signs are that countries participating in November’s BWC review meeting will avoid a repeat of late 2001’s scarring experience. Since 2002, a modest work program has helped to rebuild a measure of confidence in the BWC process.

On the whole, states-parties have been able to move beyond political rhetoric and toward improving practical implementation of BWC provisions. The conference may take these efforts further still, but given the changes transforming the life sciences, these efforts may be too little and perhaps too late.

The BWC and the Draft Protocol

The BWC emerged from the Nixon administration’s recognition that a biological arms race was not in the United States’ strategic interest and that it should abolish its germ weapons program. The BWC was signed in 1972 with the United Kingdom, United States, and Soviet Union as depository states. Three years later, it entered into force.

However, a major shortcoming of the BWC was that, despite its comprehensive ban on biological weapons, it lacked mechanisms for ensuring confidence in compliance. Indeed, BWC member-states as diverse as the Soviet Union and South Africa carried on clandestine germ-warfare activities. Meanwhile, although successive five-year review meetings acknowledged the convention’s weaknesses, not until the 1990s did an agreement emerge to develop a regime to enhance confidence in compliance. A special BWC conference in 1994 set up an Ad Hoc Group to develop a legally binding instrument to strengthen the convention.

The Ad Hoc Group Negotiations

From the early stages of the Ad Hoc Group negotiations, the United States and Russia were ambivalent about the prospect of a verification instrument. Efforts at trilateral inspections of facilities potentially relevant to biological warfare programs among the United Kingdom, the United States, and Russia in the early 1990s had encountered mixed success. Meanwhile, Iraqi deception and obfuscation seemed to be successfully impeding the UN Special Commission (UNSCOM) investigation of Saddam Hussein’s biological warfare activities.[1]

This ambivalence about the value of a protocol hampered the creation of a robust instrument. Over time it became apparent to other Ad Hoc Group delegations that the United States was not prepared to provide the leadership it had displayed, for instance, in the Chemical Weapons Convention negotiations. Such leadership was necessary for creating a robust compliance regime in the face of continual resistance from countries with minimalist positions on verification, such as China and Cuba, India, Iran, and Pakistan, the hard-line members of the Nonaligned Movement (NAM).[2] Russia, meanwhile, remained largely silent, apart from trying to establish basic definitions and “objective criteria” in the evolving protocol draft. If accepted, these would have undermined the convention by circumscribing the scope of its existing prohibitions.[3]

As the draft protocol text was fleshed out—at one stage, the rolling text was more than 300 pages long and contained thousands of brackets around passages of text not yet agreed— U.S. officials increasingly expressed their concerns about its compliance elements. These concerns became more strident as the chairman of the negotiations, Ambassador Tibor Tóth of Hungary, tried to push the Ad Hoc Group’s work toward completion before the fifth BWC review meeting in late 2001. Tóth released a composite text in late March 2001, choosing the compromise most likely to secure general agreement.

In public, the strongest U.S. reservations hinged on the draft protocol not being sufficiently robust and on the potential risks for industry proprietary commercial information. It was also clear, however, that U.S. concerns related to protecting national security-related biodefense activities from prying eyes.

Washington’s negotiating positions on aspects of the draft agreement such as the content of required declarations, routine visits to check these declarations, and investigations of alleged noncompliance with the BWC contributed to the dilution of the draft protocol’s verification provisions. Moreover, uncompromising U.S. rhetoric in the Ad Hoc Group format, often in response to provocation from NAM minimalists, exacerbated wider polarization in the negotiations. For instance, although the United States was a conscientious defender of informal export control regimes such as the Australia Group, which developing countries perceive as discriminatory, it was also publicly sceptical of modest proposals for assistance and cooperation measures. Hard-line NAM countries eagerly exploited this; they were no keener on a protocol than the United States appeared to be.

In July 2001, matters came to a head. The leader of the U.S. delegation, Donald Mahley, announced to the Ad Hoc Group negotiations that the United States rejected the draft protocol.[4] This rejection was not altogether unexpected as it followed months of diplomatic rumor about the interagency review underway in Washington as President George W. Bush’s policy team took up their posts. Nevertheless, the announcement triggered a blame game in the protocol negotiations along regional-group lines that swiftly led to its collapse.

2001 BWC Review Conference

Despite the bitterness generated by the failure of the protocol negotiations, it seemed that delegations at the review conference would cobble together an agreed outcome by the final day of December 7, including Ad Hoc Group follow-up plans. It still remained difficult to reflect the United States’ insistence on tough language in the final declaration on alleged BWC noncompliance by certain countries, but it looked like even this could be resolved through careful drafting.

That is, until John Bolton, then Bush’s undersecretary of state for arms control and international security, introduced a fresh demand. The United States, he said, could agree to annual meetings, starting in November 2002, “to consider and assess progress by states parties in implementing the new measures or mechanisms for effectively strengthening the BWC.”[5] In exchange, however, the conference would have to agree to terminate the Ad Hoc Group’s mandate. The message was clear: further work on a compliance regime was unacceptable to the United States and must stop.

Five years on, it is perhaps difficult to see the significance of Bolton’s eleventh-hour demand or why other members of the BWC, including those in the Western Group, reacted to it so strongly. After all, the draft protocol was widely regarded as less than optimal, even by its strongest supporters. Moreover, it probably would have been impossible to “re-boot” Ad Hoc Group negotiations and subsequently negotiate a better package. Was the United States not just doing everyone a favor by ending the charade of further Ad Hoc Group work?

It disturbed many that the United States had been instrumental in undermining elements of the draft protocol it then rejected for being too weak. It seemed to confirm the impression that the United States was not negotiating in good faith. Moreover, Western Group solidarity had held during the final Ad Hoc Group session’s blame game, despite the difficulty the new U.S. position posed for other Western Group members. Even Washington’s closest friends and allies felt betrayed that the new condition was announced without any consultation on the final day of the meeting. In addition, Bolton’s high-handed tone annoyed many of his European Union colleagues, which resulted in a subsequent emergency Western Group meeting melting down. With it, any last hope of rapprochement with the other regional groups evaporated.

Although the United States was often unhelpful in the Ad Hoc Group negotiations and formally rejected the draft protocol, it would be wrong to claim that it was solely or even largely to blame for the failure of efforts to strengthen the BWC through legally binding measures. In principle, protocol negotiations could have continued without the United States, which was, after all, exercising its sovereign national prerogative, not formally imposing it on others. That efforts did not continue reflected the reality that many countries had misgivings about a compliance regime that failed to capture the United States and its large biotechnology industry. The evident pleasure with which some NAM delegations sought to make the United States a scapegoat was hypocritical in view of their own efforts to prevent robust compliance measures during the Ad Hoc Group negotiations.

Nevertheless, the November 2001 review conference could have been a chance to leave behind this poisonous atmosphere if the United States had reclaimed a position of leadership by sharing its own positive vision for moving forward. Although this would not have tempered hard-line NAM criticism or guaranteed a review-meeting consensus, it would have mollified the majority of BWC moderates. It could also have served to isolate the minimalists. Instead, the United States delegation conveyed that any further BWC-related work would be under sufferance and that the Bush administration had no time for the views of others, even of close allies and other supporters.

Slight Return

In the absence of any other realistic options, the review meeting was suspended for a year, which left matters in limbo. In September 2002, the United States once again incurred widespread displeasure by proposing that the scheduled two-week resumption (November 11-22) be reduced to one half-day at which the decision would be made simply to convene another review meeting in 2006. Prospects appeared bleak for any kind of work to follow the resumed review meeting.

Instead, following intense shuttle diplomacy by Tóth, members achieved a modest consensus by the time the resumed review meeting wound up on November 15. The deal included holding annual one-week meetings in Geneva from 2003 until 2005. These would be supported by the work of additional two-week-long expert meetings to discuss a number of specific aspects of BWC implementation, including biological security, national penal legislation, international surveillance of disease, responses to suspicious outbreaks of disease or alleged use of biological weapons, and codes of conduct for scientists.[6] Any results or conclusions of these meetings were to be agreed upon by consensus and reported to this fall’s review conference. In effect, this ruled out formal consideration of resuming the protocol negotiations.

On the Comeback Trail

The good news is that this pragmatic approach has worked better than expected. So far, a cautiously positive mood has developed in the lead-up to November’s review meeting. At the preparatory meeting in April, for instance, states-parties were able to agree with relative ease on a provisional agenda and meeting rules.[7] Agreement was reached despite tensions between Iran and Western countries, the United States in particular, about Tehran’s nuclear activities, manifested by Iran’s somewhat mischievous insistence on wanting the upcoming review conference to focus again on the 2001 rejection of the draft protocol.

BWC president Ambassador Masood Khan of Pakistan overcame these and other difficulties with skillful nudging. Khan kept informal consultations under his control and ensured that members negotiated in the meeting chamber rather than behind closed doors in regional groups. This was important because it avoided the circling of regional-group wagons at the first sign of trouble and a divisive dynamic taking hold that would have set back prospects for the review meeting in November. Significantly, there were many points of commonality in various group statements, including those of the European Union, NAM, CANZ (Canada, Australia, and New Zealand), and an emerging group of moderate Latin American countries.

Still, the rebuilding of trust has been on specific terms. For the majority of countries active in the BWC review process, the quandary remains whether to insist on verification steps that risk alienating the United States and some NAM countries or to pursue the pragmatic approach that has kept the process ticking since 2002. At a time when fears about biological warfare have resurfaced, the BWC has not been able to work on new collective, binding agreements or play a role beyond encouraging national adherence to the convention. It also has had little to say as concern has shifted from the 1990s’ focus on clandestine, state-run biowarfare programs to the contemporary emphasis on countering bioterrorism, a change in perception spearheaded by the United States.

Big Issues

November’s review meeting provisional agenda encompasses all of the BWC treaty provisions by means of an article-by-article review. In addition, there are many derivative issues ranging from enhancing confidence-building measures to allowing more civil society participation in any BWC follow-up work. Meanwhile, the life sciences themselves continue to transform. For example, new domains such as synthetic biology pose practical challenges to the effectiveness of traditional nonproliferation responses, and states need to consider what these advances mean for the BWC. Yet, states will not be able to address all of these issues in depth in just three weeks. Rather, an important indication of the BWC review process’s health will be its ability to make meaningful progress on some bellwether issues. These include:

  1. What to do in cases of alleged biological weapons use. At the 2001 review meeting, the United States accused Iraq, North Korea, Iran, Syria, and Sudan, as well as the al Qaeda terrorist network, of violating BWC prohibitions.[8] Yet, the United States did not present evidence to support its accusations. Since then, the matter has not been addressed. In the absence of a broader verification protocol, there remains the UN secretary-general’s more limited investigation mechanism on weapons use.[9] A question mark, however, hangs over whether in practice this mechanism would be acceptable to some states, including China, Cuba, Iran, and the United States. Therefore, a priority for the BWC regime should be to ensure that a robust and credible means exists to investigate alleged violations of the convention, but this is unlikely in the current political atmosphere.

  2. The BWC in context: How does the convention fit with other multilateral activities to prevent biological weapons? The international community has launched a plethora of new initiatives since 2001, including UN Security Council Resolution 1540, the Proliferation Security Initiative, and activities involving the World Health Organization, Interpol, and other international organizations.[10] A recent report by the UN secretary-general underlined the need for coordination between these efforts.[11]

  3. What should the extent and shape of follow-up activities after the sixth review conference be? The United States has made it clear it will not agree to work on a verification mechanism or a BWC “organization” much more ambitious than the small unit currently attached to the UN Department for Disarmament Affairs. This aside, there appears to be considerable scope for practical next steps, provided these are focused and the case is persuasive, in particular to the United States.

Governments and other experts have suggested many ideas for follow-up to the review meeting. More proposals will undoubtedly emerge in coming months as policymakers focus their attention on preparing national positions for the review meeting and blocs such as the European Union and regional groups gather to coordinate views.

The most acceptable proposals are likely to be those focused on further improving national implementation of the BWC.[12] A Canadian proposal for an “accountability package” presented at the April preparatory meeting contains a number of concrete proposals, including specific steps on national implementation, enhanced confidence-building measures, strengthened national implementation support, and annual meetings “to consider the state of implementation of the convention and new developments relevant to its purpose.”[13] To this end, the package also outlines a proposal that has already found wide support in the BWC: to put the small secretariat unit on a more secure footing and to develop its capabilities.

Wider events also have a role to play. Continuing deadlock in the Conference on Disarmament, an inability by states to reach agreement on an outcome document at the July UN small arms review conference, and the expected difficulties at the Third Review Conference of the Convention on Certain Conventional Weapons in November will make many moderate countries keen to achieve a final document at the cost of ambitious proposals. Moreover, there is a general expectation among BWC delegations that although the United States has in general played a constructive role in the post-2002 follow-up process, it will continue to have firm positions that constrain ambitious plans.

Pakistan, which will chair the BWC review meeting, is hoping for success. April’s preparatory meeting showed that Khan understands the nuances of working with the so-called hard-liners, including Iran and Cuba, which took over as NAM coordinator in September, and he may have sufficient influence with his colleagues to help secure the necessary compromises.

Wild-card issues could have a great influence over the prospects of a successful review outcome. The “war on terror” has shifted orientation toward issues of bioterrorism as a number of new multilateral agreements on aspects of terrorism attest.[14] This has suited many BWC members. Dealing with terrorism is a more palatable focus in the current political environment than state noncompliance. However, a Middle East security situation that deteriorates further in the lead-up to the review meeting or a biological weapons attack could turn current expectations about the BWC process on their head.

Choosing a Way Forward

BWC delegations have not always shown they are aware of the distinction between the BWC political process and the norm against biological weapons, which surpasses contemporary preoccupations. Acrimony and shabby dealing have sometimes characterized the review process, and this has done little to strengthen the convention’s prohibitions. Consequently, November’s review meeting will be an important test for the BWC’s stewardship.

This November, pragmatism will almost certainly win out over ambitious proposals for verification steps. It is obvious to most BWC delegations that any hope of a return to negotiations on a verification protocol remains illusory for the moment. A crisis similar to 2001, however, is unlikely unless problems arise such as those that threatened the 2006 preparatory meeting. Khan seems conscious of this and has consulted intensively with a wide range of BWC delegations to try to avoid any nasty surprises, although these could still emerge.

The U.S. attitude will be pivotal. Moderates in the BWC context seem to realize that members will have to tailor proposals for follow-up work on strengthening the convention or its implementation to what Washington is prepared to live with, as Canada has tried to do in its “accountability package” proposal. This means emphasis on the specific and incremental. Less likely is substantial progress to clarify and enhance a robust investigation mechanism for cases of alleged noncompliance, although such a mechanism would seem rather important in view of the historical prominence of noncompliance concerns, such as those voiced by the United States in 2001.

A BWC review conference that produces a final document including specific and meaningful follow-up steps to strengthen its implementation would help to put to rest many rifts of the last decade. Whether it will orient the convention’s membership toward effectively responding to current and future challenges is another matter entirely. These challenges include responding to the implications of new advances in the life sciences and clarifying whether so-called nonlethal biochemical incapacitant weapons are banned, such as those used by Russian Special Forces in the 2002 Moscow theatre siege.[15] These kinds of problems that threaten the norm created against hostile use of the life sciences are not going away, and the BWC must tackle them at some point or lose credibility and relevance.

For U.S. policymakers, there is also a broader issue to consider. In the long run, the United States cannot have its cake and eat it too. For the last five years, the BWC process has operated in a kind of oxygen tent, effectively quarantined from decisively responding to important issues that may impinge on the convention’s effectiveness. This has largely been at the behest of the United States, which has often been severely critical about the efficiency of the BWC process. But Washington has taken a tough line against alleged violators of the convention’s prohibitions. In 2003, for example, it invaded Iraq partly on the justification Saddam Hussein had a hidden biological weapons program. Meanwhile, its own biodefense activities, including building highly classified facilities to research biological weapons, are raising legitimate international concern that the United States is violating the BWC.[16]

Since 2002, most states active in the BWC process have cooperated fully with Washington’s expectations. By continuing to resist the development of measures that would enhance transparency about its activities and overall confidence in compliance with the BWC over the longer run, however, the United States could fatally undermine general acceptance that biological weapons are barbaric and must remain banned. In other words, U.S. policymakers need to recognize that their current policies could have unintended and negative consequences for national security, reversing the foresight of a previous administration that biological weapons are not in the greater interest of the United States or of the world.

With skill and a little flexibility, Washington’s biodefense concerns can be squared with multilateral cooperation in effective ways. A welcome first step would be to entrust the BWC process with follow-up work and view the sixth review conference more in terms of its potential for shared benefit than as an irksome drag. This would signal that the BWC has returned from the political wilderness, and it would resemble the leadership the United States has often shown the world in enhancing collective security in the past.

 


John Borrie has followed the Biological Weapons Convention process for almost a decade. Formerly an arms control negotiator for the New Zealand government, he leads a project entitled “Disarmament as Humanitarian Action: Making Multilateral Negotiations Work” at the UN Institute for Disarmament Research (UNIDIR) in Geneva. The views expressed in this paper are the sole responsibility of the author and do not necessarily reflect the views or opinions of the United Nations or UNIDIR, its staff members, or sponsors.


ENDNOTES

1. Despite trenchant criticism of UNSCOM’s efforts and those of its successor, the UN Monitoring, Verification and Inspection Commission, U.S. efforts after the invasion of Iraq in 2003 to find biological weapons or infrastructure were no more successful.

2. The NAM is an international organization of 115 members representing the interests and priorities of developing countries. China and Mexico are not formal members of the NAM but often associate themselves with NAM positions in the BWC context.

3. See BWC Articles I and III. For the text of the BWC and most official documents of the review process, see http://www.unog.ch/bwc.

4. Statement by the United States to the Ad Hoc Group of Biological Weapons Convention States Parties, July 25, 2001.

5. Jenni Rissanen, “Left in Limbo: Review Conference Suspended on Edge of Collapse,” Disarmament Diplomacy, No. 62 (January/February 2002).

6. For details of this mandate, see BWC/CONF.V17 (2002).

7. BWC/CONF.V/PC/1 (May 2006).

8. Statement of United States to the Fifth Review Conference of the BWC, November 19, 2001.

9. Articles VI and VII of the BWC outline procedures for referral to the UN Security Council to investigate breaches of the BWC, including alleged use of biological weapons. In turn, various General Assembly resolutions and UN Security Council Resolution 620 created a way for these allegations to be forwarded from the Security Council to the UN secretary-general for investigation. See BWC/MSP/MX/INF.3 (2004).

10. Resolution 1540 enhances the UN Security Council’s institutional role in coordinating nonproliferation efforts against weapons of mass destruction (S/RES/1540 (2004)). The U.S.-led Proliferation Security Initiative (PSI) stresses practical cooperation by PSI voluntary partners in physical interdiction efforts against weapons of mass destruction. See Piers D. Millett, “The Biological and Toxin Weapons Convention in Context: From Monolith to Keystone,” Disarmament Forum, No. 3 (2006).

11. “Uniting Against Terrorism: Recommendations for a Global Counter-Terrorism Strategy—Report of the United Nations Secretary-General,” A/60/825 (April 2006).

12. Sims, “Towards the BWC Review Conference: Diplomacy Still in the Doldrums,” Disarmament Diplomacy, No. 82 (Spring 2006), pp. 8-16.

13. BWC/CONF.VI/PC/INF.1 (April 2006).

14. These include the International Convention for the Suppression of Acts of Nuclear Terrorism, agreed in New York on April 13, 2005.

15. See David P. Fidler. “The Meaning of Moscow: “Non-Lethal” Weapons and International Law in the Early 21st Century,” International Review of the Red Cross Vol. 87, No. 859 (September 2005), pp. 525-552.

16. “The Secretive Fight Against Bioterror,” The Washington Post, July 30, 2006, p. A1.