CIAO DATE: 1/00

The Emerging Verification Protocol

Stephen Pullinger

Series Editors: Prof. Graham Pearson and Prof. Malcolm Dando

Preventing Deliberate Disease:
Strengthening the Biological and Toxin Weapons Convention
October 1999

The International Security Information Service

 

Summary of Main Points:

Negotiations are nearing completion of a verification Protocol to the Biological and Toxin Weapons Convention (BTWC) to strengthen the prohibition on biological weapons.

The draft verification Protocol contains the following key elements:

• Mandatory declarations—of the most relevant facilities.
• Infrequent randomly selected visits and declaration clarification procedures—to ensure the accuracy of declarations and to address any ambiguities, uncertainties or omissions in declarations.
• Non-compliance investigations—to determine whether there is non-compliance with the BTWC.
• Enhanced co-operative benefits from biotechnology—a particular incentive for developing countries and for universal accession.
• Effective implementation of the Protocol—including national measures and the establishment of a BTWC Organisation.
• The draft Protocol contains all the essential elements for an effective and efficient regime to strengthen the BTWC. Recent events indicate that the political will exists to complete the negotiations and finalize the Protocol soon.

 

1. The Biological and Toxin Weapons Convention (BTWC)

The Geneva Protocol (1925) whilst forbidding the use of biological weapons (BW) did not prohibit their development and production. This was prohibited by the 1972 Biological and Toxin Weapons Convention (BTWC), which entered into force in 1975. A relatively short treaty, the BTWC’s major flaw was the lack of any verification provision. Over 160 states have signed the BTWC of which 143 are States Parties.

The end of the Cold War, the discovery of a major Iraqi BW programme, the fear of further proliferation of BW, concerns over new military applications of developing biotechnology, revelations of the extent of the former Soviet programme and the successful conclusion of the Chemical Weapons Convention (CWC), combined to spur States Parties to strengthen the BTWC with a Verification Protocol.

BW are the easiest WMD to develop and yet their prohibition regime is by far the weakest. The CWC, which entered into force in 1997, has an intrusive verification regime within it. Nuclear weapons, although not prohibited, are much more difficult to conceal and development is harder to disguise.

BW are presently less entrenched in military systems than nuclear weapons and should therefore be easier to prohibit. But this could change if they spread, if new utility is afforded them and if new types of BW become available.

 

2. The BTWC Protocol

The BTWC has been subject to five-yearly Review Conferences since it entered into force in 1975. The 1986 Review Conference sought to increase transparency through confidence-building measures (CBMs) in the form of politically binding data exchanges; these were improved and extended in 1991. In the aftermath of the Gulf War the 1991 Review Conference agreed to examine potential verification measures for the Convention. Consequently, an Ad Hoc Group of governmental experts (VEREX) was set up for this purpose. It met four times between 1992 and 1993 and a Special Conference to consider its final report was held in September 1994.

This Special Conference mandated a new Ad Hoc Group (AHG) to negotiate a Verification Protocol. It was to consider, inter alia, definitions of terms and objective criteria, the incorporation of existing and further enhanced CBMs and transparency measures, a system of measures to promote compliance with the BTWC and specific measures designed to ensure effective and full implementation of Article X (scientific and technical co-operation).

The key elements for an integrated regime are now all within the draft Protocol. They are as follows:

2.1 Mandatory Declarations

Mandatory Declarations are designed to require declarations of the most relevant facilities and not of all possible facilities. The main question here is what should be the triggers for requiring a declaration and what should be the format and content of the declaration? In April 1999, the draft Protocol included the following triggers:

• Initial Declarations (past offensive and/or defensive programmes; national legislation and regulations).
• Annual Declarations (current defensive programmes; vaccine production facilities; maximum biological containment (BL-4) facilities; high biological containment (BL-3) facilities (excluding diagnosis & medical treatment); work with listed agents; other production facilities; other facilities; transfers; Article X declarations).
• Notifications (outbreaks of disease).

In considering declarations it is important to devise a system in which the requirements are unambiguous; consequently, there may be a need for definitions of specific terms and for a list of agents for declarations. It is now clear that no commercial proprietary information would be required in declarations.

The AHG has focussed its attention on the information to be provided in declarations and the format of declarations. The key to a satisfactory and effective regime will be to strike the right balance and by confining declarations to the most relevant facilities, this would avoid an information overload both for states in collecting the information and for the Organization in analyzing it. There are potential benefits in making declarations publicly available to the greatest extent possible. This would enable outside experts to provide what would be a "health check", thereby enhancing confidence that declarations were both complete and accurate.

2.2 Follow-up randomly selected visits and declaration clarification procedures

There is a clear need for follow-up procedures to declarations. Infrequent randomly selected (transparency) visits are needed to ensure that declarations were accurate. Procedures to address any ambiguities, uncertainties or omissions in declarations need to include—should correspondence and consultations not resolve these—clarification visits.

The provisions for Random Visits in the draft Protocol in April 1999 were as follows:

• Over a five-year period, visits divided between each category of declarable facilities in approximate proportion to the total number of declared facilities in each category.
• No more than 10 to any State Party in five years.
• Duration no more than two days.
• Visit team no more than four persons.
• Purpose of visit limited to confirming that declarations consistent with obligations.
• Report shall be confidential.

Insofar as Declaration Clarification Procedures are concerned, the process would be as follows. Clarification would first be sought by writing to the State Party; if this did not resolve the issue, then consultations might be carried out at the offices of the National Authority; and if this failed to resolve the issue, then a clarification visit to the facility might be undertaken. However, provision is also included, should a state feel that it had made every reasonable effort to resolve the issue, for it to refuse the clarification visit. Such a refusal would be reported to the Executive Council.

The provisions for Clarification Visits in April 1999 were as follows:

• No more than 20 per year.
• No State party shall receive more than two per year, although this limit would not apply if the State Party had not made its initial declaration.
• Implementation plan for clarification visits would be submitted to the quarterly Executive Council meetings.
• Purpose of the visit would be limited to clarifying the issue related to the declaration.
• Duration no longer than 48 hours.
• Visit team no more than [five] persons.

2.3 Voluntary Visits

In addition, there was language for Voluntary Visits, which in April 1999 had provisions as follows:

Each State Party may request visits:

• to help compile declarations;
• to resolve a particular concern that it had about declarations.
• The Director-General shall decide upon such visits taking into account the availability of resources in the Technical Secretariat.
• Detailed arrangements for the purpose and conduct of the visit would be agreed in advance between the Director-General and the State Party concerned

Random, Clarification and Voluntary Visits will all contribute to an effective integrated regime that ensures that declarations are both complete and accurate:

One can make a useful analogy between the declarations and visits regime for the Protocol and the self-assessment income tax process that applies in the UK. In this process, the individual completes and signs his tax return [declaration] and is required to keep all the relevant records. The tax authority calculates the tax liability. A number of individuals are selected at random to check the accuracy of their tax return [declaration]. Anomalies are the subject of clarification inquiries and tax evasion is the subject of investigations and prosecution.

2.4 Non-Compliance Investigations

The process for initiating such investigations both for field and facility investigations is not yet finalized. Attention needs to be given to how a transition might be made, when appropriate, from a field investigation to a facility investigation.

The draft Protocol in April 1999 contained provisions for three types of investigation:

• [Field] Investigations [of alleged use of biological weapons]
• [Facility] Investigations [of any other alleged breach of obligations under the Provisions of Convention]
• [Investigations where there is a concern that a transfer has taken place in violation of Article III of the Convention]

There are a number of outstanding issues relating to investigations including:

• In respect of [Field] Investigations [of alleged use of biological weapons], there is currently language stating that ‘All natural outbreaks of disease do not pose a compliance concern to the Convention’. Consequently, there is a need to be able to distinguish other outbreaks of disease from natural outbreaks.
• What information would be required to be submitted with an investigation request?
• How would the Executive Council make a decision about launching an investigation? By a red light process (in which a majority of states would have to vote to stop an investigation) or a green light process (in which a majority of states would have to vote for an investigation to take place)?
• How might a transition be made from a field to a facility investigation?
• What background information on endemic diseases would be available to the BTWC Organization?

2.5 Enhancing co-operative benefits from biotechnology

Benefits could accrue to the compliance regime and to international cooperation for peaceful purposes from measures to achieve the implementation of Article X of the Convention. This is because Article X—covering the promotion of international co-operation for peaceful purposes—is the prime incentive for many states to become parties to the Convention. Article VII, on the other hand, covers the non-transfer of biological agents or equipment for prohibited purposes.

Some suggestions have been made for specific measures to implement Article X and Article VII of the Protocol such as:

• Strengthening of disease surveillance networks.
• Promotion of biosafety and national regulations for work on pathogens.
• Improved national controls on handling, use and transfer of pathogens.
• Promotion of pharmaceutical GMP (Good Manufacturing Practice).

It is recognized that such measures, over time, would increase transparency and build confidence in compliance. It is important in considering Article X measures to devise ones which will bring benefits to both developing and developed countries.

Article III Measures. Under Article III of the BTWC State Parties have an obligation not to transfer materials or technology for purposes prohibited under the Convention. There are already national controls in many countries and also within regions such as the European Union. The US has recently strengthened its internal controls relating to the handling, storage and transfer of a list of ‘select agents’.

Multilateral regimes already exist for a variety of materials and equipment such as the export/import mechanism established by the UN for Iraq, the Prior Informed Consent Convention for ‘banned and severely restricted chemicals’ (adopted in 1998), and the imminent completion of the negotiations for a Biosafety Protocol which would include provisions for Advance Informed Agreement for the transboundary transfer of living modified organisms.

It was unlikely that the solution adopted in the CWC of an undertaking by States Parties to review their existing national regulations in the field of trade in chemicals would be acceptable to the states negotiating the BTWC Protocol.

The current Protocol has language for guidelines for transfers requiring the provision of information on:

• the specific agent/toxin, purpose, quantity, etc.;
• equipment for use in a BL-4 facility;
• technology related to means of delivery, aerosolisation, stabilisation;
• national laws, regulations and measures and language that wouldrequire that no transfer took place to non-States Parties without approval.

2.6 Effective Implementation of the Protocol.

There is no organisation to maintain the BTWC between review conferences. Clearly, an organisation to implement the Verification Protocol will be a necessity: this will probably be similar to, though considerably smaller than, the Organisation for the Prohibition of Chemical Weapons (OPCW).

Article IV Measures. Under Article IV of the BTWC, each State Party has an obligation to take appropriate national measures to implement the BTWC; similar obligations will be required for the Protocol, as both have to be legally binding nationally to be effective. Currently, the draft Protocol has weaker language than the comparable text in the CWC, with the language relating to the requirement for the enactment of penal legislation in square brackets. It is, however, clear from the experience of the CWC that enactment of national legislation was slow and variable. There is still an apparent reluctance of the AHG to require penal legislation as part of the national implementation measures for the Protocol.

BTWC Organization. The draft Protocol contains provision for a Conference of States Parties, an Executive Council and a Technical Secretariat. There is also language that the Organization, as an independent body, shall seek to use existing expertise and facilities, as appropriate, and to maximise cost efficiencies, through cooperative arrangements with other international organizations.

Various studies into the size and cost of a future BTWC Organization have suggested about 200 people and an annual budget of around $30 million—less than half the size and budget of the OPCW. The BTWC Organization might have about 70 inspectors carrying out about 100 visits each year. Its location is not yet decided—Geneva or The Hague have been proposed.

Although there is still much proliferation of square brackets indicating alternatives, there is nothing new required to strengthen the BTWC.

 

3. Prospects

The AHG has made real progress. A draft Protocol was produced in June 1997 which has been revised at subsequent sessions and in July 1999 had reached the ninth version. This now contains all the essential elements for an effective and efficient regime to strengthen the BTWC. The recognition that negotiations are nearing completion is reflected in the numbers of States Parties involved in the negotiations, which reached some 65 States Parties and five Signatories in January 1999.

In most areas of the Protocol there have been three or four complete readings of the rolling text. The last six months has seen the engagement of all delegations in serious negotiations which is making steady, though slow, progress. The development of the Protocol can be shown graphically (see below) by considering first the phases through which the text for the individual Articles and the Annexes proceed as they mature.

If the various areas of the Protocol are then superimposed on this graph it can be seen that a great deal has already been achieved, especially in respect of Article VI Assistance, Article X National Implementation and the various legal issues (Articles V and XI through XXIII). The Articles on Confidentiality (IV), Organization (IX) and the Annex D on Investigations are also well advanced. It is evident that the majority of the Articles in the draft Protocol have now reached the stage when they have had multiple readings and are unlikely to change significantly during the coming months. Progress is being made on Article III Compliance Measures and, in the last two sessions, on Article VII Technical Co-operation. Overall, it is evident that an effective Protocol can be achieved.

It is clear from the political developments over the past 18 months that the political will exists to complete the negotiations and finalize the Protocol. There is now a sense of momentum and expectation that this will be achieved soon. In early 1998, the US announced its firm support for the early completion of substantive negotiation of the Verification Protocol and this has subsequently been reiterated around the world. The EU made a strong statement in March 1998 and again in May 1999 which commits the 15 member States and the 14 other and associated States.

There is a widely shared perception that the issues are soluble and hence that an efficient and effective regime is achievable. The AHG has a real opportunity to do this during the 16 weeks of negotiation in the five sessions scheduled for 1999. The challenge is to strike the right balance of measures so that the integrated regime is one supported by all States as, to achieve universality, there need to be clear incentives for all States to accede to the Protocol.

 

Sources for Further Information

The Bradford Project on Strengthening the Biological and Toxin Weapons Convention provides up to date information on the negotiations of a comprehensive compliance and verification Protocol to strengthen the 1972 Biological and Toxin Weapons Convention. The text of the latest draft Protocol and of the Working Papers submitted to the Ad Hoc Group are available on the Bradford web-site together with the series of Bradford Briefing Papers and Evaluation Papers and further documentation relating to the prohibition and elimination of biological weapons. The web-site is at http://www.brad.ac.uk/acad/sbtwc

The Harvard Sussex Program on CBW Armament and Arms Limitation (HSP) has the goal of providing information and analysis towards an effective multilateral treaty regime which will eliminate chemical and biological weapons and help prevent the exploitation of biomedical technologies for hostile purposes. It publishes the CBW Conventions Bulletin, which includes a quarterly review on Progress in Geneva towards strengthening the Biological Weapons Convention. This is available at http://fas-www.harvard.edu/~hsp/

 

Web-sites providing other insights include:

Federation of American Scientists—Biological and Toxin Weapons Verification Program (http://www.fas.org/bwc/

Centre for Nonproliferation Studies—Monterey Institute of International Studies (http://cns.miis.edu/)

Stimson Center’s Chemical and Biological Weapons Nonproliferation Project (http://stimson.org/cwc/index.html)

Chemical and Biological Warfare Project of SIPRI (http://www.sipri.se/)