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Outlook for the Resumed BWC Fifth Review Conference

Amb. Tibor Toth, Chairman of the BWC Ad Hoc Group.

by Erika Holey

Strengthening the Biological Weapons Convention (BWC) has been a topic widely debated within the arms-control community for nearly a decade following the revelation that the former Soviet Union and Iraq had for years operated clandestine offensive biological weapons programs. Disagreement among states about the best way to do this still dominates the discussion today, as was illustrated throughout the work of the Ad Hoc Group and the Fifth Review Conference that began in November 2001. This discussion will continue on November 11, 2002, when the resumed session of the Fifth Review Conference begins in Geneva, Switzerland.

Questions hang over virtually every aspect of the resumed session, including its length, content, tone, and outcome. Since last November, much of the discussion on limiting the proliferation of biological weapons has focused on the frustration felt by many States Parties after the suspension of the review conference. With many unknowns and the possibility of failure looming heavily over the resumed session, it is useful to examine work that has taken place over the last year for indications of what may transpire at and after the upcoming session.

The Fifth Review Conference began last November in the shadow of the U.S. rejection of the draft Protocol in July 2001. On the first day of the conference, the United States offered an alternative proposal, which focused on national legislation and the utilization of existing UN mechanisms for strengthening the BWC rather than a traditional multilaterally negotiated instrument. The measures proposed by the United States included criminalizing the acquisition and possession of biological weapons by individuals, restricting access to pathogens and toxins, strengthening the investigation mechanism of the UN Secretary-General, supporting the work of the World Health Organization (WHO) in the area of disease surveillance, and establishing a code of conduct for scientists. Aspects of the U.S. proposal were included in the draft final declaration, and agreement on Articles II, VIII, XIII, XIV, XV, and the Preamble was reached before the suspension of the conference.[1]

On the conference's final day, the remaining areas of dispute were, predictably, the subjects of noncompliance, investigations, technology transfer and export controls (Article X), the Ad Hoc Group, and the follow-up to the conference. On the issues of the Ad Hoc Group and follow-up, a new U.S. proposal made in the final hours called for the termination of the Ad Hoc Group and its mandate. Many States Parties expressed anger and frustration over this last minute, very controversial proposal.[2] These sentiments will likely have an impact on the upcoming resumed session with political will remaining a key variable in whether or not progress takes place. Leading up to the resumed session, there is significant uncertainty about the positions of States Parties and what is likely to take place this November.

STATES PARTIES

In the last year, much attention has been paid to statements made by U.S. officials that might indicate a change of position from their last-minute proposal to end the Ad Hoc Group and its mandate. U.S. support for this proposal, which shocked and angered other delegates including key U.S. allies, appears to remain. In talking points issued at the September 2 meeting of the Western Group, the United States strongly reiterated its support for the termination of the Ad Hoc Group and its mandate. However, the United States stated that if the Review Conference were "very short," it should not address the issue of the Ad Hoc Group. "[The] US definition of a 'very short [Review Conference]' is one with the sole purpose and outcome of agreeing to hold a [Review Conference] in 2006."

A related aspect is whether follow-up meetings would take place prior to the Sixth Review Conference to be held in 2006. On this, the U.S. opinion is clear. Arguing that the best place to address the threat of biological weapons is not the BWC, the United States said it would not support any meetings within the context of the BWC prior to the Sixth Review Conference. However, some room may remain for holding informal meetings on biological arms control outside the BWC.[3]

Aside from these talking points, the United States has reemphasized its opposition to the draft Protocol and the continuation of the Ad Hoc Group in several statements during 2002. In a speech to the Tokyo American Center in Japan on August 27, Under Secretary of State for Arms Control and International Security John Bolton detailed the U.S. position towards the BWC. He spoke at length about the U.S. reasons for rejecting the draft Protocol and called for the termination of the Ad Hoc Group. Bolton also outlined steps that the United States has taken in the last year that follow the U.S. proposal for non-traditional approaches to biological arms control last November. These included passing new national legislation to control biological weapons, such as the USA Patriot Act, and the Public Health Security and Bio-terrorist Preparedness and Response Act, as well as supporting various initiatives through the WHO, G-8, NATO, and Australia Group.[4]

In the last year, many States Parties have made it clear that they are still frustrated regarding the future of the Ad Hoc Group and the draft Protocol. There have, however, been signs that some states are interested in furthering some of the measures proposed by the United States.

In April, the United Kingdom published a "green paper" which it described as an attempt to identify workable measures to strengthen the BWC and give new momentum to the international debate on biological weapons. The United Kingdom identified several measures for consideration that were similar to those put forward by the United States. Three of the specific areas for action identified in the conclusion of the "green paper" are similar to aspects of the U.S. proposal. These are: increased efforts to address the threat of infectious disease, criminalization of violations of the BWC, and increased restrictions on work that involves dangerous pathogens, toxins, and genetic modification. Other options that the United Kingdom said it was ready to examine include supporting UN investigations into use of biological weapons, providing assistance to states affected by biological attacks, and establishing a code of conduct for scientists--all of which were also mentioned in the U.S. alternate proposal. It is certainly worth noting that the very first item on the U.K. list of specific areas for action was the establishment of an effective and legally binding process for the investigation of several types of suspected noncompliance, a particularly controversial aspect due to its allusions to the Ad Hoc Group and draft Protocol.

Aside from the U.K. "green paper," there have not been many publicly elaborated state views. However, during statements made to the First Committee of the Fifty-Seventh Session of the General Assembly, there were some indications that the positions of other states have changed. Several states, including the European Union, Japan, and India, highlighted the issue of follow-up as being central to the work at the resumed session. In the most detailed statement on the BWC, South Africa showed support for a rapid conclusion to the work of the Review Conference and deleting references to the Ad Hoc Group or the draft Protocol in the final declaration. It also supported the establishment of an expert group or groups that would meet annually to deal with specific issues related to the BWC. In addition, South Africa expressed support for annual meetings of States Parties to consider the work of the experts.[5]

On October 17, 2002, Tibor Tóth introduced draft decision L.22 on the BWC to the First Committee. In the introduction, he described the results of informal consultations with States Parties that he has held over the last year. He expressed a level of optimism that some agreement on the follow-up to the review conference could be reached at the resumed session. Tóth noted general support among states for the resumed session being short and focused on the issue of follow-up. The possible follow-up mechanism he described was a combination of annual meetings of States Parties and experts that would concentrate on a limited number of issues.[6] Draft decision L.22 was adopted by the First Committee without a vote on October 22.

UNITED NATIONS DEPARTMENT FOR DISARMAMENT AFFAIRS

During the last year the UN Department for Disarmament Affairs (DDA) has continued its collection of information according to previously adopted confidence-building measures (CBMs), as well as having begun the process to update the roster of experts and laboratories available to assist with UN investigations into allegations of chemical or biological weapons use. Originally developed from information supplied by States Parties in 1984 and 1988, the roster has not been updated since then. The updated roster could be of particular importance if states actually were to utilize this means of investigation, as was proposed by the United States in November 2001.[7] Unfortunately, submissions by States Parties of both CBMs and information on experts and laboratories have been slow. By October 2002, only 22 countries had responded to a DDA letter soliciting updated expert and laboratory information, of which four were nil responses. Several of the countries that contributed significantly to the first roster have not yet submitted names of experts and laboratories for the updated version.

ACADEMIC COMMUNITY

Valuable contributions designed to address the threat of biological weapons have also come from the academic community in 2002. Some of these contributions are resurrections of past initiatives that may have been overlooked because of the international emphasis on the work of the Ad Hoc Group, while others are new approaches. One initiative that has received support from some States Parties, including mention in the recent U.K. "green paper," is the "Draft Convention to Prohibit Biological and Chemical Weapons under International Criminal Law," which was developed by the Harvard Sussex Program. The intention of this initiative is to extend to individuals the prohibitions that are contained within the BWC and Chemical Weapons Convention, but apply only to States Parties. This convention would require States Parties to establish jurisdiction over their territory, conduct investigations into alleged offenses within their territories, and prosecute or extradite any alleged offender. In particular, the convention would establish criminal jurisdiction over foreign nationals who have committed an offense in a state other than the one in which he or she is currently located. The state in which the alleged criminal is residing would be responsible for either prosecuting the offender or extraditing him/her to the state in which the offense was committed.

Another initiative from academia is a biosecurity convention, proposed by the Center for Nonproliferation Studies at the Monterey Institute of International Studies. First appearing in the Bulletin of Atomic Scientists May-June 2002 issue, this convention intends to prevent unauthorized access to dangerous pathogens and regulate pathogen transfers. It would seek to prevent the diversion of biological agents from peaceful purposes to illicit use, while simultaneously protecting legitimate scientific and defensive uses. The convention seeks to address the lack of restrictions on culture collections possessed by thousands of companies, laboratories, and germ banks around the world. There has been support by States Parties for action on the issue of biosecurity; however, the prospect for negotiation on a convention is complicated by its overlap with existing export control arrangements, in particular the Australia Group, and the impact it may have on Article X of the BWC.

A third convention-type initiative being informally discussed is the "Draft Model Convention on the Prohibition and Prevention of Biological Terrorism," which was prepared by Professor Barry Kellman of DePaul University College of Law. Similar to the Harvard Sussex draft convention, one objective of Kellman's initiative is to criminalize the hostile use of biological agents. He extends criminal culpability to individuals who have participated in other aspects of a bioterrorism event such as supplying, receiving, or smuggling precursors or equipment that have not been subject to the regulations also contained within the draft model convention.[8]

In addition to these three initiatives to develop new international instruments regarding biological weapons, the academic community has also made efforts to facilitate dialogue on controversial aspects of the work of States Parties. Recently, the Henry L. Stimson Center produced a report of experts from the U.S. pharmaceutical industry assessing the U.S. alternative proposal made in November 2001. The report, titled "Compliance Through Science: US Pharmaceutical Industry Experts on a Strengthened Bioweapons Nonproliferation Regime," is an especially useful endeavor as the negative impact of an overly intrusive verification agreement on the U.S. biotechnology industry has been repeatedly highlighted by the United States as a reason for its rejection of the draft Protocol. The report offers a valuable glimpse into the thoughts of industry insiders on the U.S. alternative proposal.

CONCLUSION

From recent statements it appears that many States Parties are in favor of having a relatively short and focused resumed Fifth Review Conference. Rather than participating in a two-week session that could quickly descend into a battle of "naming names," states seem to want to keep the session short and focused on the issue of follow-up in order to maintain momentum at the multilateral level on the issue of controlling biological weapons. If the session were very lengthy, requests could be made for already agreed upon sections of the draft final declaration from last November to be reopened for comment, thus adding to the existing frustration of States Parties to make progress on a final declaration.

On the issue of follow-up, several states have expressed support for some form of meetings to be held prior to the 2006 Sixth Review Conference. Questions remain about how formal the meetings will be, whether they will be groups of experts or BWC States Parties, and what specific issues they will address. Although the United States has spoken against holding any meetings prior to the Sixth Review Conference, this may be an area on which it must compromise because of the strong support for follow-up meetings by other states. If it were decided that meetings would be held on specific issues, the initiatives from the academic community may well play an important role in the discussions.