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Verification and the BWC: Last Gasp or Signs of Life?
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Trevor Findlay

At first blush, the outlook for cooperative, multilateral verification of compliance with the 1972 Biological Weapons Convention (BWC) looks grim. In 2001-2002, ten years of work devoted to preparing for and then negotiating a draft protocol to establish a standing verification organization for the treaty collapsed.[1]

In subsequent meetings of experts and annual meetings of states-parties devoted to discussing, not negotiating, a variety of BWC-related topics, verification rarely featured. Meanwhile, national policies toward BWC verification appear to have remained static.

The United States instigated the abrupt halt to the protocol negotiations at the treaty’s Fifth Review Conference. U.S. officials apparently remain steadfast in their view that effective verification of the BWC is impossible and that attempting it will be both delusional and dangerous to U.S. national security and commerce. Only a few Western states have been willing to hold aloft the banner of full-fledged verification.

It is reasonable to ask whether, in these circumstances, as the BWC’s Sixth Review Conference approaches in November and December of this year, there is any hope for moving forward on verification measures. The short answer is that there will be no agreement to return to the protocol negotiations, no new initiative to create a standing verification body for the treaty, and no wholesale climbdown by the United States on biological verification. The v-word itself likely will continue to be avoided in any final document, as it has been for years in deference to U.S. sensibilities.

Still, some gains can be made. A modest form of progress is possible on what might be termed quasi-verification measures, those which fall short of a full verification regime but could help to improve monitoring of the BWC. Indeed, even as the BWC regime appears to have stagnated in recent years, there has been some quiet movement that is changing the context of the bio-verification debate. Even if these efforts do not produce results at the conference, they may herald developments beyond it.

A Broader View of Verification

First, the concept of verification in the arms control and disarmament field has been considerably broadened since the end of the Cold War, not just due to that great sea-change but to the events of September 11, 2001; the perceived rise of global terrorism; and the exposure of Pakistani scientist Abdul Qadeer Khan’s nuclear smuggling network. In turn has come the increased willingness of the UN Security Council, at least compared to its traditional reticence, to involve itself in ensuring compliance with international strictures on the proliferation of so-called weapons of mass destruction (WMD),[2] in some cases. Most notable to date has been its two-fold attempt to achieve the verified disarmament of Iraq, but the Security Council has also acted on North Korea’s ballistic missile threat and seems to be moving inexorably toward action in the case of Iran.

Perceptions of verification have also changed as a result of the Bush administration’s attempt to portray multilateral arms control and its accompanying verification edifices as outdated remnants of the Cold War that are inappropriate in the current era. Although undoubtedly self-serving, enabling the United States to justify its opposition to any verification measures for the 2002 Strategic Offensive Reductions Treaty and the proposed fissile material cutoff treaty, this has had the beneficial effect of forcing the arms control community to re-examine its long-held assumptions about the nature of verification. In any community that is 50 years old, it is only natural that certain shibboleths will form, sacred cows will be anointed, and unorthodox views accordingly shunned.

Today the international community’s collective view of verification has, by and large, been broadened to include virtually any activity that contributes to the full implementation of a treaty. The argument goes that because all measures designed to contribute to full implementation require monitoring to ensure compliance, they become part of the total verification package. The realization has come quite late, for instance, that noncompliance consists not simply in a state violating the central article of an arms control or disarmament agreement, by acquiring a banned weapon, but also in not fulfilling all of the treaty’s legal obligations, both nationally and internationally.

In an age of global terrorist threats, it has become crucial, for instance, that all states have national implementation measures to prevent their citizens or those of other countries from using their territory for nefarious purposes. It is vital that transshipment of goods be regulated and port security enhanced. Monitoring how states comply with these obligations becomes a form of verification. Indeed, this may be as important as verifying whether most governments are seeking weapons of mass destruction, especially because the majority are, in reality, what might be termed “serial compliers.”

As a result, reporting and transparency measures, once regarded in some quarters as simply providing a baseline for on-site inspections, have assumed much greater importance in the verification universe. This is exemplified by UN Security Council Resolution 1540 of April 2004 and its April 2006 follow-up, Resolution 1673, which demand that all states not just adopt national implementation measures to stop nonstate actors acquiring weapons of mass destruction but compels them to report their activities to the council. Cooperative threat reduction programs, export control regimes, and measures such as the Proliferation Security Initiative are all increasingly perceived as being part of the broad verification-compliance enterprise because they all involve a form of monitoring that generates verification-relevant information.

Not only has the verification envelope been pushed, but it has collided with a previously immovable object, compliance and enforcement. States have for too long neglected the compliance aspects of treaties, both in drafting and implementing them. What happens after a state engages in serious, deliberate noncompliance? This question was rarely posed in designing verification systems.Thanks to the United States, the compliance issue has been rejoined, both in the sense of being increasingly debated and in the sense of a reassertion of its indissoluble link to verification. This is not simply a Bush administration invention but a return to arms control’s original philosophy.

None of this is to say that the Bush administration’s ideological attack on multilateral verification has been an unalloyed good. On the contrary, in many respects it has been destructive of confidence and trust among the very states on which the United States depends to pursue its global aims. As former Department of State official Avis T. Bohlen has said of John Bolton, the former undersecretary of state for arms control and international security, who oversaw the U.S. hatchet job on the BWC protocol, “He was absolutely clear that he didn’t want any more arms control agreements. He didn’t want any negotiating bodies. He just cut it off. It was one more area where we lost support and respect in the world.”[3] Yet, what started as a U.S.-led redefinition of the boundaries of verification for its own purposes has, for better or worse, now permeated the multilateral dialogue on arms control and disarmament.

All of these developments have arguably had their greatest impact on the biological weapons category of weapons of mass destruction given the absence of a traditional verification regime for such weapons and continuing U.S. opposition to one being created. There has been a profusion of ideas that amount to monitoring of BWC implementation at least, if not verification of compliance. Improved biosecurity to avoid proliferation of dangerous pathogens, for instance, requires not just new standards but monitoring to ensure implementation. Enhanced confidence-building measures (CBMs) improve transparency, a hallmark of verification regimes. Better global disease surveillance is surely monitoring and hence a form of verification.

Verifiability Revisited

A second trend that may ultimately break up the biological weapons verification logjam is more specific to that class of weapons. Since the demise of the protocol, developments have occurred that call into question the assertion by some that the BWC is essentially unverifiable. Notable is the work of Amy Smithson in Washington, D.C., at the Henry L. Stimson Center and the Center for Strategic and International Studies. As she notes, “Policymakers, industry officials, and the general public are commonly told that the BWC is ‘unverifiable’ due to the complex, dual-use nature of biological materials, equipment, and technologies and the claim that inspections would automatically reveal sensitive defense or business information. These assertions hang in the air unchallenged.”[4]

Drawing on a wealth of expertise in industry, academia, and among inspection veterans, Smithson’s three painstakingly researched reports collectively amount to a rebuttal of the “inherent unverifiability” thesis.[5] Smithson, like the Bush administration, concludes that the draft protocol as it stood in 2001 was unworkable, but her studies indicate that it is possible to craft a mechanism to monitor industry facilities without necessarily compromising national security or commercial confidentiality. The same presumably may apply to biodefense facilities, research facilities permitted under the treaty to develop antidotes and other means of countering biological weapons threats. Smithson’s final report recommends that full field trials be held to test the proposed mechanism. This would partly fulfill the obligations of a U.S. law, ignored by the Clinton and Bush administrations, that mandates a thorough experimental and analytical assessment of the capabilities of on-site inspections for monitoring BWC compliance.[6]

In addition to this pioneering research, there has been, for the first time since attempts in the early 1990s to investigate the former Soviet biological weapons program, extensive field experience of multilateral biological weapons verification in the search for such activity in Iraq. The UN Special Commission (UNSCOM) did some of this pathbreaking work before 2001, which the United Kingdom subsequently used in designing proposals for the verification protocol; more experience was subsequently garnered by UNSCOM’s successor, the UN Monitoring, Verification and Inspection Commission (UNMOVIC). This work was supplemented by the Australian/U.S./British Iraq Survey Group, which conducted its own search for biological weapons in Iraq after the coalition invasion in March 2003.

Changes in U.S. Policies Toward Multilateralism

A third, more recent trend with a potential impact on biological weapons verification may be characterized as the smoothing of the rougher edges of the Bush administration’s view of the utility of multilateralism. Tactically, U.S. policy has already mellowed somewhat under Secretary of State Condoleezza Rice in a variety of areas, notably with respect to Iran, North Korea, and the International Criminal Court. Even if the administration’s substantive views have not changed very much, the absence of the more combative Bolton from biological weapons policy and some subsiding of the rancor that resulted from the demise of the protocol has moderated the political context of the debate over biological weapons verification.

It is now difficult to imagine the complete absence of an internal debate in the lead-up to the review conference and beyond. The yawning gap between the administration’s realistic appraisal of the biological weapons threat and its completely negative assessment of the role that verification might play in dealing with the threat is surely unsustainable. In the post-Bush administration future, alternative perspectives on verifiability may well seep into the policymaking process, especially if taken further by additional research, scientific trials, and a thorough study of the lessons of the various Iraq biological weapons verification exercises.

Limits of Progress

To be sure, these developments do not portend a sudden change in official U.S. or other states’ attitudes toward verification of the BWC, especially since Bush administration objections have been as much ideological as substantive.

For example, a recent fact sheet on the State Department website baldly states that “international mechanisms and procedures will not contribute to the verifiability of the BWC.”[7] Other countries, which due to U.S. commandeering of the verification issue never had to reveal their true positions, undoubtedly continue also to hold anti-verification views, albeit for different reasons.

Russia, which has never revealed everything it knows about the Soviet biological weapons program—the most egregious violation of the BWC to date—views less than fondly the prospect of a standing verification regime that might do some retrospective sniffing around. Although China has more or less happily accepted the intrusive verification provisions of the Chemical Weapons Convention (CWC), it undoubtedly continues to wish to avoid further international constraints on its sovereign prerogatives and biotechnology prospects.

Cuba, India, Iran, and Pakistan, always wary of the protocol, presumably remain that way, even though they are part of the nonaligned group that officially contends that “the only sustainable method of strengthening the convention is through multilateral negotiations aimed at concluding a non-discriminatory legally binding agreement, dealing with all the Articles of the Convention in a balanced and comprehensive manner.”[8] This code language advocates a link between verification and the provision of assistance in biotechnology to the developing world, an issue that helped sink the protocol. On the other hand, a group of Latin American countries, in their own declaration, have expressed a willingness to develop with other delegations an “incremental process” toward providing the BWC with an “adequate verification mechanism.”[9]

The remaining, largely Western flag-bearers for BWC verification have mostly retreated into quiescence. Despite threatening otherwise, it seems they never seriously contemplated continuing with the protocol negotiations without the United States, as they did when Washington withdrew from negotiations to implement the Kyoto Protocol on climate change. Occasionally, Canada or Switzerland makes a ritualistic plea for a return to the protocol negotiations or speaks in favor of a comprehensive, multilateral verification mechanism of some sort, but their hearts seem not to be in it. A joint statement by Australia, Canada, and New Zealand in April 2006 failed even to mention verification.[10] Japan and Germany, which because of their large biotechnology industries consistently expressed qualms about some aspects of biological weapons verification, have gone particularly quiet.

The German view was reflected in the European Union Common Position this March that said rather lamely that the EU “remains committed to developing measures to verify compliance” with the BWC.[11]

Only Sweden and the United Kingdom, after a period of Foreign Office soul-searching, admit to remaining true believers. British Undersecretary of State for the Foreign and Commonwealth Office David Triesman said in early 2006 that the British government continues to favor creating an “inspections mechanism” for the BWC.[12] In the annual states-parties meetings, London submitted a concrete proposal that called for updating and strengthening the UN secretary-general’s mechanism for probing alleged use of chemical and biological weapons.[13]

It went nowhere, in part because the meetings were constrained from making recommendations, much less instigating action. It also reflected the fact that in the decades-long tussle between BWC reformists and BWC minimalists,[14] momentum has swung back in favor of the latter.

Implications for the Review Conference

It remains difficult at this stage to predict how these various trends will play out at this year’s review conference. In general, expectations are being kept deliberately low. After the drama over verification at the conference five years ago, there is an awareness that this topic, at least as traditionally conceived, is unlikely to be advanced by any delegation, much less attract the attention it deserves.

Nonetheless, the broader conception of verification that has recently emerged means that there are several quasi-verification options that are likely to receive attention at the meeting. This is in part because they have been debated at one of the annual meetings of states-parties since the last review and because there is general recognition of their value.

National Implementation Measures

The most obvious area is national implementation measures, including legislation. This field was considered at the first of the annual meetings, in 2003. A new dynamic to the issue was imparted by UN Security Council Resolution 1540, which directs all states, whether BWC states-parties or not, to adopt measures to prevent nonstate actors from acquiring biological weapons. There seemed to be unanimity at a seminar on the BWC held in Tokyo in February 2006 that national implementation measures must be advanced by the review conference.[15] It is difficult to see the conference failing to acknowledge, if not endorse, what is now obligatory for all states.

Yet, it is also not likely that the review conference will go beyond what the Security Council already demands in terms of reporting, which the council requires annually and which it scrutinizes via its 1540 Committee. This is partly because states will argue that the council is already “seized” of the matter and partly because many states are struggling to comply even at the most rudimentary level.

The conference could, however, establish some form of regularized support, including advice, assistance, and capacity building, for states that are struggling to comply with respect to biological weapons, in the same way that the Organization for the Prohibition of Chemical Weapons supports its members in their national implementation measures for the CWC. Canada has proposed such a step as a specific conference outcome. Given that voluntary financing will be the key to such an initiative, its prospects have been improved by the EU’s decision to expand its funding of nonproliferation initiatives to include biological weapons issues.[16] Such a role could be one of a number envisaged for a BWC institution or secretariat, various versions of which have been proposed by several states.

Of the major WMD arms control treaties, the BWC is the only one that has no such secretariat. The verification protocol would have established an Organization for the Prohibition of Biological Weapons, and since its demise, the United States has opposed any initiative that smacked of “creeping institutionalization.”

Confidence-Building Measures

A second area likely to be considered by the conference is the strengthening of the voluntary CBMs that have been progressively adopted by review conferences in 1986 and 1991. These take the form of annual declarations by states to each other of their BWC-relevant activities. Few states comply annually and rigorously. Proposals have been made since the CBMs first went into effect to expand the range of information sought, make them mandatory, and provide for more sophisticated compilation, analysis, and dissemination.[17] It is not clear which of these ideas will be entertained at the conference, but a number of states will be highlighting them. In particular, the EU is attempting to seize the moral high ground by having each of its members annually file a complete CBM return covering all nine declarations.[18]

Secretary-General’s Investigatory Capabilities

A third item that could be considered by the review conference, the most directly related to traditional verification, is a review and updating of the UN secretary-general’s investigatory mechanism. This 15-year-old arrangement originates from ad hoc probes requested by the UN General Assembly. In the early 1980s, the secretary-general was tasked with investigating the alleged use of chemical and toxin weapons in Indochina and Afghanistan. In 1982 the assembly institutionalized the procedure, giving the secretary-general standing authority and (modest) capacity for investigating future allegations of chemical, biological, and toxin weapons use in violation of the 1925 Geneva Protocol. The Security Council endorsed the arrangement in 1986. The mechanism comprises a list of experts that could be made available by states for investigative missions, a list of certified laboratories available for testing samples, and a set of recommended procedures produced by an expert group for the conduct of investigations. The mechanism has been used 12 times in six states, the last in 1992, sometimes on the initiative of the secretary-general himself. Since then, the arrangements have atrophied: the lists are incomplete and the procedures outmoded, not least due to the extensive experience of UNSCOM and UNMOVIC and scientific and technological developments in chemical and biological monitoring and verification.

Fostered initially by the United Kingdom’s initiative, the issue is gaining momentum. Many states are now on record as wanting the mechanism revivified. They include all of the EU and many other European states, in addition to Australia, Canada, Japan, and New Zealand. The UN Secretariat is ready to do its bit to review the mechanism, including by following up its 2002 request to UN member states for new nominations of experts and laboratories. The EU in March 2006 committed its members to update their expert and laboratory offerings.[19] A series of reports by independent commissions as well as UN-instigated reports has also recommended updating the mechanism.[20]

Most importantly, there are signs that the United States might be brought around to not standing in the way of this relatively modest reform. This would be in keeping with its at times newly pragmatic, albeit minimalist, acquiescence in multilateral initiatives. It would not only partly atone for overbearing U.S. behavior in quashing the BWC protocol at the last review conference but would be entirely consonant with President George W. Bush’s 2001 list of alternatives to the protocol, one of which was “procedures for addressing compliance concerns.” Further, the mechanism would still only deal with allegations of use and not research, testing, production, stockpiling, and transfer.

One potential difficulty might be that the mechanism was originally intended to address the verification lacuna in the 1925 Geneva Protocol, rather than the BWC. The protocol has a different set of states-parties and covers chemical and biological weapons use. An attempt at the 2004 intersessional meeting to have the BWC states-parties request the secretary-general to update the mechanism failed to gain consensus, presumably because of the fear that a revived mechanism could lead to BWC verification. Because the mechanism was established by the UN General Assembly outside the BWC context, one can easily imagine procedural objections alone being used to scuttle a renewed attempt to send such a request to the secretary-general.

By contrast, one verification initiative that would definitely sour the review conference would be a proposal to reconvene the Ad Hoc Group, which until 2002 had been negotiating the verification protocol and which has never been formally wound up. Re-enacting the battles of the last review conference would be counterproductive and not in the best interests of biological disarmament. During the April preparatory meeting for the conference, states-parties agreed on an agenda that removed some explicit references to the work of the Ad Hoc Group and verification. Although there may now be broad acquiescence to the U.S. desire to terminate the group and its mandate, spoilers such as Iran could use the issue to try to derail the conference.

Conclusion

Compared with discussions about strengthening the elaborate nuclear safeguards system or managing the intrusive, routine on-site inspections mandated by the CWC, the international conversation about BWC verification, often conducted sotto voce and without even using the dreaded v-word, must seem pathetically wan. Yet, in an area so fraught with controversy and past failure, even the realization of some of the modest possibilities discussed above would be a triumph.

Much of what happens at the review conference on the verification front, however defined, will in any case depend on broader currents that will be swirling around the event. As Nicholas Sims reminds us, tensions between Iran and the United States alone, although largely unrelated to the biological weapons issue, could help sink the conference.[21] Ideological sparring between the West and the nonaligned states about the privileging of certain BWC commitments over others—proxy for the Western fixation on compliance versus developing-country demands for free biotechnology—could also derail matters. This is quite apart from arguments over institutionalization and procedural wrangles over how the intervening years before the seventh review conference should be usefully employed.

What is needed on the BWC verification issue is for a white-knight state to step forward to lead the charge of the reformists. With so much dependent on the attitude of the United States and most states engaged with the world’s only superpower on issues far more important to their national interests than biological weapons verification, however, none is likely to appear. The best that can be expected is modest movement forward with U.S. acquiescence, if not enthusiasm. Hardly worthy of Bush administration nonproliferation official Carolyn Leddy’s laudable admonition to us to “succeed in our efforts to eliminate the proliferation of weapons of mass destruction.”[22] Yet, as she also says, “[a]nything else is not an option.”

 


Trevor Findlay is director of the Canadian Centre for Treaty Compliance at Carleton University, Ottawa.


ENDNOTES

1. Michael Nguyen, “BWC Verification: A Decade-Long Detour?” Arms Control Today, April 2006, p. 16.

2. Nuclear, radiological, chemical, and biological weapons and their means of delivery.

3. Scott Shane, “Never Shy, Bolton Brings a Zeal to the Table,” The New York Times, May 1, 2005.

4. “Resuscitating the Bioweapons Ban: U.S. Industry Experts’ Plans for Treaty Monitoring,” Center for Strategic and International Studies, November 2004, p. vii.

5. House of Cards: The Pivotal Importance of a Technically Sound BWC Monitoring Protocol, Stimson Center Report No. 37, May 2001; Compliance Through Science: U.S. Pharmaceutical Industry Experts on a Strengthened Bioweapons Nonproliferation Regime, Stimson Center Report No. 48, September 2002.

6. National Security and Corporate Fairness Under the Biological Weapons Convention Act, Public Law 106-113, November 29, 1999.

7. Bureau of Verification, Compliance, and Implementation, U.S. Department of State, “Verification and Compliance With International Prohibitions Relating to Biological Weapons,” November 2005 (fact sheet).

8. “Statement by the Delegation of Malaysia on Behalf of the Group of Non-aligned Movement and Other States Parties to the Biological Weapons Convention,” Geneva, April 26, 2006.

9. “Joint Declaration of the Delegations of Argentina, Bolivia, Brazil, Colombia, Costa Rica, Chile, Ecuador, Guatemala, Mexico, Peru and Uruguay to the Preparatory Committee for the Sixth Review Conference of the States Parties to the BWC,” Geneva, April 26, 2006.

10. Intervention by Canada on behalf of Australia, Canada and New Zealand, Sixth Review Conference of the Biological Weapons Convention, Geneva, April 26-28, 2006.

11. “Council Joint Action 2006/184/CSP of 27 February in Support of the Biological and Toxin Weapons Convention, in the Framework of the EU Strategy Against the Proliferation of Weapons of Mass Destruction, Official,” Journal of the European Union, L 65/51, March 3, 2006.

12. David Ruppe , “ U.K. Still Favors Biological Weapons Verification,” Global Security Newswire, March 15, 2006.

13. “Enhancing International Capabilities for Responding to, Investigating, and Mitigating the Effects of Cases of Alleged Use of Biological or Toxin Weapons or Suspicious Outbreaks of Disease,” BWC/MSP/2004/MX/WP, July 23, 2004 (submitted by the United Kingdom).

14. Jez Littlewood, The Biological Weapons Convention: A Failed Revolution ( Aldershot, UK: Ashgate Publishing, 2005).

15. Ministry of Foreign Affairs of Japan and Center for the Promotion of Disarmament and Non-Proliferation of the Japan Institute of International Affairs, “Future Measures for Strengthening the BWC Regime,” Tokyo, February 14-15, 2006 (summary of discussions at the BWC Tokyo seminar).

16. Oliver Meier , “EU Approves Nonproliferation Framework,” Arms Control Today, June 2006, p. 37.

17. Nicholas Isla and Iris Hunger, “BWC 2006: Building Transparency Through Confidence Building Measures,” Arms Control Today, July/August 2006, pp. 19-22.

18. These pertain to data on research centers and laboratories and national biological defense research and development (R&D) programs; outbreaks of infectious diseases; publication of results and promotion of use of knowledge; active promotion of contacts; declaration of legislation, regulations, and other measures; past activities in offensive and/or defensive biological R&D; and vaccine production facilities.

19. “EU Action Plan on Biological and Toxin Weapons, Complementary to the EU Joint Action in Support of the BTWC, 2006/C 57/01,” Official Journal of the European Union, Vol. 49, No. 9 (March 2006).

20. A More Secure World: Our Shared Responsibility, 2004, p. 46 para. 141; In Larger Freedom, A/59/2005 (March 21, 2005), p. 29 para. 104; Uniting Against Terrorism: Recommendations for a Global Counter-Terrorism Strategy, A/60/825 (April 27, 2006), p. 18 para. 90.

21. Nicholas A. Sims, “Toward the BWC Review Conference: Diplomacy Still in the Doldrums,” Disarmament Diplomacy, No. 82 (Spring 2006).

22. “S.S. Urges ‘Concrete Action’ to Stop the Spread of WMD,” Arms Control & Non Proliferation, Documents & Texts from the Washington File, U.S. Embassy, London, February 14, 2006.

 

Posted: September 1, 2006