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Topic
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US
statement of 25 July 2001
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Testimonies
given on 5 June or 10 July 2001
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US
position voiced in the AHG negotiations
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Comment/
summary
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General
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“the current approach to a Protocol … is not … capable of achieving
the mandate”
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“advise the Bush administration to reject the chairman’s text, but
not to abandon the BWC protocol negotiations” A. Smithson, written testimony on 5 Jun 2001)
“the degree to which the burden of the protocol on legitimate
activities is balanced by its value for arms control purposes - a balance
that has not been successfully achieved in the draft … text” G. Woollett, written testimony on 5 Jun
2001)
“The negotiations on a Protocol for the BTWC have failed to produce a
document that strengthens the Convention or increases the security of its
member States Parties.” A.. Zelicoff,
written testimony on 5 Jun 2001)
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11AHG: “measures to strengthen compliance should include
[d]eclarations … visits … investigations … cost-effective and independent
organization” (WP.296)
12AHG: “the outline of a useful protocol has already emerged under
the able leadership of of Ambassador Toth”, “the following four principles
are essential elements of the final product … declarations … investigations …
means to ensure that all sites whose activities merit declaration are in fact
declared … a professional organization … these elements must be the core and
backbone of your product” (statement by
Mr. Holum on 6 Oct 1998)
19AHG: “the Ad Hoc Group has made considerable progress in shaping
the structure of a Protocol and in framing hard issues clearly. Most of the
technical complexities have been resolved.” (statement by Mr. Holum on 29 Mar 2000)
21AHG: “We want a Protocol … We applaud the work that the Ad Hoc
Group has accomplished to date … we have reached constructive agreement on a
number of crucial issues in progress toward a successful Protocol. The U.S. believes we should redouble our
efforts over the coming months toward the successful conclusion of a BWC
Protocol … The United States will exert every reasonable effort to complete
prior to that date [Fifth RevCon] a Protocol that will further strengthen
international security … we are also prepared to stay at the job until it is
done right. No one should doubt … our resolve to stay the course until the
solution is truly a strengthening of the international norm against
biological weapons …” (statement by
Amb. Mahley on 23 Nov 2000)
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up to 25 Jul 2001 the US had not voiced concern over the general
approach of the AHG; they had supported a package of declarations, visits,
investigations and an organisation as backbone of a Protocol; Amb. Mahley’s
statement on 23 Nov 2001 referred to “constructive agreement on a number of
crucial issues”, indicating that at least some of the protocol provisions were
considered useful as late as Nov 2000
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Objectives of a Protocol
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“to uncover illicit activity”; “to agree on a declaration base that
would provide reasonable inventories of activity in a country relevant to the
underlying Biological Weapons Convention”; “to deter or complicate the
ability of a rogue state to conduct an illicit offensive biological weapons
program”
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“we believe that a protocol to that convention ought to provide to
the greatest extent that it can some additional transparency and some additional
confidence that countries are complying with the obligations”, “we therefore
would like to be able to have a system by which we could call into question
any issues that one had brought up and we would like to have a system in
which we could confirm those kinds of concerns that we had developed”, “it's
that combination of what we're after in this negotiation -- something that
will enhance our ability and confidence that people are complying with the
convention and something that will studiously avoid undercutting either the
convention itself or any other parallel mechanisms in the world that are
currently extent to try to address the threat of biological weapons”, “Anyone
who believes that this protocol will provide, in any fashion, an unequivocal
answer about whether or not someone is cheating on the Biological Weapons
Convention, is naively optimistic.” (Amb.
Mahley, transcript of testimony on 10 Jul 2001)
“The U.S. government has consistently recognized the inability of any
protocol to improve the verifiability of the BWC. This position was
reaffirmed by the previous administration before the negotiations began in
1995. Instead, the goal established by the previous administration was to
promote measures that would provide some degree of increased transparency of
potential biological weapons-related activities and facilities.”, “But this
administration, the previous administration and the administration before
that have consistently stated our view that we did not envision a protocol as
a way to make the BWC effectively verifiable and we've stood by that.” (Mr. Lacey, transcript of testimony on
10 Jul 2001)
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US consistently said that the protocol would not provide verification
(although no reference to this could be found in the AHG documentation); Amb.
Mahley during the 10 Jul 2001 hearing refers to additional transparency as
the aim of the Protocol, as well as mechanisms to address concerns once they
are brought up; this is quite different from the aim of the Protocol that is
expressed in the US statement on 25 Jul 2001
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Constitutional and ratification issues
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“we have brought to the attention of the Ad Hoc Group the issues
where we believed there were explicit requirements to allow the United States
to achieve ratification”; “there are elements of the ‘Composite Text’ draft
that violate the requirements with respect to this issue [ratifiability]”
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the Composite Text sets out in its Article 9 on investigations,
subparagraph 28 (e), that the receiving State Party is “under the obligation
to provide the greatest degree of access possible, taking into account any
consti-tutional obligations it may have with regard to proprietary rights or
searches and seizures”
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CPI and NSI
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“the draft
Protocol would put national security and confidential business information at
risk”; “the current proposals [on declaration triggers] do not provide
sufficient protection to sensitive legitimate activities”; “proprietary or
national security information may be at risk” [during random visits]; a
number of safeguards have been inserted into procedures to protect
information not relevant to the BWC. Those safeguards are insufficient to
eliminate unacceptable risks to proprietary or national security
information.”; “[facilities] would have no firm assurance proprietary
information could not be inferred from what was seen by inspectors.”
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“The … draft
text … establishes mechanisms to expose confidential business information”,
“[during challenge inspections] strict managed access must be employed and
the inspected site must have the final determination of what is proprietary
information” (G. Woollett, written
testimony on 5 Jun 2001)
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the Composite Text sets out in various places provisions to guarantee
the protection of confidential infor-mation, both national security and
commercial pro-prietary information; the list ranges from the narrow
definition of “facility” in the case of declarations and visits, via access
provisions for visits and investigations, to a specific article and annex
setting out confidentiality provisions
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Range of declaration triggers
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“… declaration of an almost randomly-selected set of facilities …”;
“Trying to catalog them [relevant facilities] all would be tantamount to
impossible.”; “emphasis on the wrong targets”; “exclusions in declarations
would permit a potential proliferator to conceal significant efforts in
legitimately undeclared facilities”
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“we accept that a protocol strengthening the BWC cannot exempt
private industry”, “current triggers … are ambiguous, and the focus is on
those facilities with greatest legitimate capabilities … the declarations are
extensive” (G. Woollett, written
testimony on 5 Jun 2001)
“focus on declarations of facilities that would be very unlikely to
engage in illegal activities” (A.
Zelicoff, written testimony on 5 Jun 2001); “a manufacturing
facility, a Department of Defense biological weapons defense laboratory, a
university medical school, and the most advanced aerosol biological facility
in the United States, and … an explosive testing facility, all of which are
of potential relevance to the BWC” (A.
Zelicoff, transcript of testimony on 5 Jun 2001)
“three types of facilities likely to be monitored by the BWC, namely,
research institutes in universities, pharmaceutical and biotechnology
companies, and defense contracting firms” (Ms.
Smithson, transcript of testimony on 5 Jun 2001)
“the protocol is certainly not comprehensive in its conclusion of
coverage of facilities of concern. I
think it’s noteworthy that universities and many other facilities, food
processing facilities, are not included … that there’s certain … arbitrary
distinctions or criteria that exclude R&D facilities or even less small
possible production facilities that still are a matter of concern”(R. Kadlec, transcript of testimony on
5 Jun 2001)
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11AHG: “measures to strengthen compliance should include …
[d]eclarations of a range of facilities and activities of potential relevance
under the Convention” (WP.296)
19AHG: US has advocated notification of outbreaks of disease and
national legislation and regulations and opposed “other facilities” and BL3
facilities as declaration triggers, US suggests deleting these four triggers
altogether (statement by Mr. Holum on
29 Mar 2000)
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until 25 Jul 2001 the US had never indicated that they find the
selection of triggers arbitrary or random; they had explicitly expressed
their support for declarations of a range of facilities and activities of
relevance to the BTWC; the Composite Text follows the proposals of the US
closely - the “other facilities”, “national legislation” and “outbreak of
disease” trigger do not appear in the text, the BL3 trigger is in practice a
repetition of the triggers “produc-tion” and “work with listed agents/toxins”
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Current biodefence trigger
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“there are still provisions in the current proposals … inimical to legitimate
national security efforts”; “the current proposals do not provide sufficient
protection to sensitive legitimate activities”; “exclusions in declarations
would permit a potential proliferator to conceal significant efforts in
legitimately undeclared facilities”
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12AHG: US want to declare 1) whether or not biodefence activities
were conducted, 2) the general objective of R&D activities, 3) summary of
R&D activities on “prophylaxis, pathogenicity and virulence, diagnostic
techniques, aerobiology, medical treatment, or toxinology/toxicology”, 4) all
government biodefence facilities above a … person years threshold which did
work on “prophylaxis, etc. [as above]”,
5) list all non-government biodefence facilities above a … person years
threshold which did work on “prophylaxis, etc. [as above]”, US also want a minimum declaration requirement (WP.319)
15AHG: Us want to declare 1) whether R&D activities were
conducted as part of biodefence efforts, 2) general objectives of such
R&D activities, 3) summary of R&D activities on “pathogenicity and
virulence, aerobiology, toxinology, prophylaxis, diagnostic techniques,
medical treatment, detection, physical protection and decontamination, 3) for
sites conducting R&D on pathogenicity and virulence, aerobiology or toxinology,
declare all facilities conducting these activities if at the site more than …
person years were expended, and list all facilities conducting these
activities if at the site between … and … person years were expended;
different declaration requirement for small programmes(WP.378)
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the language for this trigger in the Composite Text largely follows
US preference, thereby excluding a considerable number of biodefence
facilities and activities from declarations
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Production trigger
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“The … draft text … unduly targets vaccines”, “the protocol’s focus
on vaccine manufacturers reflects a World War II mind set -- a time in which
one had to have the pathogen on-site in order to make a vaccine. The emphasis
on capability also unduly targets the U.S.” (G. Woollett, written testimony on 5 Jun 2001)
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in contrast to the Rolling Text, the Composite Text subsumes the
“vaccine produc-tion” trigger under the overall trigger “production”
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Declaration formats
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“the formats [are] confusing, and they require inclusion of confidential
business information” G. Woollett, written testimony on 5 Jun
2001)
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Usefulness/ purpose of random visits
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“the overwhelming bulk of such activity would take place on the
territory of those States Parties least likely to be proliferation candidates”;
“… transparency visits actually risk damage to innocent declared facilities,
despite the fact that they would have almost no chance of discovering
anything useful to the BWC if they took place at a less-than-innocent
facility”
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“BWC inspections [she is
referring to visits here] have two major purposes: 1) to ferret out
non-compliance, and 2) to demonstrate compliance on the part of legitimate
facilities” A.. Smithson, written testimony on
5 Jun 2001)
“any routine on-site activity is not a useful concept ... However,
our industries are sympathetic to the concept of non-routine, non-random
‘familiarization’ or ‘educational’ visits, provided they are voluntary and
under the full control of the company visited” (G. Woollett, written testimony on 5 Jun 2001)
“‘declaration checking’ resulted in so much ambiguous data that the
inspection team left the sites convinced that legitimate activities were
covers for biological weapons activities”, “a random visit to a modern
pharmaceutical facility would be unlikely to uncover prohibited activities”,
“the vast majority of effort … is directed at routine, radom visits to sites
around the world - most in the West, the plurality in the United States … It
was these very types of visits that were simulated in some of the US trials …
and that were the source of confusion and actual undermining of confidence in
compliance” (A. Zelicoff, written
testimony on 5 Jun 2001)
“They [defence contractors, academic and industry] believed that
routine inspections were needed.” (A. Smithson,
transcript of testimony on 5 Jun 2001)
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11AHG: “measures to strengthen compliance should include … visits to
facilities in order to promote accurate and complete declarations” (this does not clearly relate to random
visits, it could instead be read as endorsement of clarification visits) (WP.296)
18AHG: US have concerns over purpose, scope of visit mandate, conduct
and nature of report of transparency visits; US wants as purpose to keep TS
up-to-date, to enhance transparency and to promote fulfilment of declaration
obligations, purpose is not to validate declarations (in-room paper dated 2 Feb 2000)
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in Jan 2000 the US seemed to have accepted the concept of random
visits, but voiced a number of concerns, especially over purpose, mandate,
conduct and reporting; the Composite Text takes up most of these concerns -
random visits are not envisaged to vali-date declarations (much less to find
non-compliance); the mandate is of a standard nature, “shall be confined to
the purposes” of these visits, and is distinctly different from the mandate
for investigations; nature of all access inside the facility is at the
discretion of the visited State Party and the visiting team is not allowed to
comment in the report upon any requests for access which were not granted;
finally, the report is to be a factual account of the visit
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Duration and timing of random visits
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“the academic group believed that three days would probably be needed
for large research laboratories and the industry group thought that five days
would be required to determine compliance or non-compliance [presumably with the BTWC] at
commercial sites” (A. Smithson, written
testimony on 5 Jun 2001)
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Size of visiting team
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“more than 4 inspectors would be needed for a non-challenge
inspection” , 5 to 8 would be appropriate (A.
Smithson, written testimony on 5 Jun 2001)
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Mandate of random visits
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18AHG: “should be strictly limited to the purposes of the visit,
rather than potentially open ended as in the FOC text”, declaration should
not be included, mandate should be relatively simple and generic (in-room paper dated 2 Feb 2000)
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Conduct of random visit
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18AHG: key obligation of visited State Party is to provide a briefing
and tour, visit should not be adversarial, should be co-operative and confidence-building
and impose minimal burdens, no intrusive investigation-type activities, no
need for managed access-type procedures (in-room
paper dated 2 Feb 2000)
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US view that visits should not be investigation-like and the report
should not contain findings or conclusions is in stark contrast to the US
criticism voiced in regard to these visits, namely that they are supposed to
discover information useful to the BTWC
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Report of random visits
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18AHG: US want the report to be a factual account of the visiting
team’s activities, the team should not draw conclusions or make findings (in-room paper dated 2 Feb 2000)
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Purpose of declaration clarification procedures/ visits
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“BWC inspections [she is
referring to visits here] have two major purposes: 1) to ferret out
non-compliance, and 2) to demonstrate compliance on the part of legitimate
facilities” (A. Smithson, written
testimony on 5 Jun 2001)
“‘declaration checking’ resulted in so much ambiguous data that the
inspection team left the sites convinced that legitimate activities were
covers for biological weapons activities” (A.
Zelicoff, written testimony on 5 Jun 2001)
“PhRMA urges that clarification procedures between the international
secretaries and the state parties be established in anticipation of questions
about declarations. However, we
believe these procedures should not require any additional onsite
activities.” (G. Woollett, transcript
of testimony on 5 Jun 2001)
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US has consistently supported strong declaration clarification
procedures
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Applicability of declaration clarification procedure
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11AHG: to both declared and undeclared facilities (WP.294)
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Initiation of declaration clarification procedures
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11AHG: in case of declared facilities by TS, in case of undeclared
facilities by States Parties or by TS (WP.294)
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Initiation of clarification visit
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17AHG: DG shall “submit to the requested State Party in writing a
proposal to conduct a clarification visit … [and] place the proposed visit on
the agenda of the next regular Executive Council meeting for review and vote”
(WP.410)
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Decision-making on clarification visit requests
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11AHG: TS initiates the visit in case of declared facilities, ExC
decides within 48 hours by “red light silence procedure” in the case of
undeclared facilities (WP.294)
17AHG: “the requested visit shall proceed, unless the ExC decides …
otherwise” by two-thirds majority (WP.410)
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Timing and duration of a clarification visit
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“the academic group believed that three days would probably be needed
for large research laboratories and the industry group thought that five days
would be required to determine compliance or non-compliance [presumably with the BWC] at commercial
sites” (A. Smithson, written testimony
on 5 Jun 2001)
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11AHG: notice “[7] [14] days in advance of arrival”, “duration of the
visit shall not exceed [2] [3] work days (during normal business hours)” (WP.294)
17AHG: “period of visit shall not exceed 48 hours”, but may be
extended once for 48 hours, if all agree; instead of seven days, notification
should be 10 days in advance of the visit (WP.410)
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the Composite Text provides for 7 days notification time, and the
possibility to propose alternative dates occurring within 7 days of the
originally proposed visit date
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Size of visiting team
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“more than 4 inspectors would be needed for a non-challenge
inspection” , 5 to 8 would be appropriate (A.
Smithson, written testimony on 5 Jun 2001)
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11AHG: “limited to [5] persons, including support personnel”,
splitting is not allowed unless requested by visited facility (WP.294)
17AHG: instead of size limit of four members, team size shall be
limited to five members, splitting is not allowed unless agreed to by visited
State Party (WP.410)
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the Composite Text foresees a maximum of 4 members
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Mandate for clarification visits
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11AHG: in case of declared facilities, the mandate “would be limited
to clarifying the specific previously raised declaration issues. The visit
area would be limited to the location of the relevant portion of the declared
activity or facility”, in the case of undeclared facilities the mandate
“would be limited to clarifying the activities or facilities about which
there is concern that an omission has occurred” (WP.294)
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Rights and obligations of visited State Party during clarification
visits
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11AHG: managed access applies with specific procedures negotiated as
appropriate, sampling is prohibited unless offered by visited facility (WP.294)
17AHG: plan of activities shall be agreed before start of visit
activities, sampling shall not be conducted unless offered by the visited
State Party (WP.410)
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the Composite Text sets out that the visited State Party may offer
activities in addition to the activities foreseen for clarification visits
(asking questions, inter-viewing, visually observing, examining
documentation)
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Report on clarification visits
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11AHG: visiting team would make no judgement on whether or not the
visited State Party had met its declaration obligations (WP.294)
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Usefulness of investigations
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“If there is a modicum of deterrence to be gained from a future
protocol, it is the inclusion of provisions to permit immediate and full
investigation of possible violations” (R.
Kadlec, written testimony on 5 Jun 2001)
“Only two measures - challenge inspections and disease outbreak
surveillance and investigation - resulted in information that was useful for
monitoring or strengthening the BWC” (A.
Zelicoff, written testimony on 5 Jun 2001)
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Relationship of outbreaks of disease and investigations
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“there are a series of roadblocks in front of those measures likely
to be most fruitful: timely investigation of disease outbreaks” (A. Zelicoff, written testimony on
5 Jun 2001)
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11AHG: delete references to natural disease outbreaks not being a
cause for investigations; however, requests for investigations based on a
disease outbreak shall contain information “indicating that such outbreak is
potentially connected to activities prohibited by the Convention” and the
requested State Party may provide information indicating that an outbreak “is
naturally occurring or otherwise unrelated to activities prohibited by the
Convention” (WP.285)
15AHG: disease outbreaks shall only be investigated, if there is
concern, that it is directly related to activities prohibited by the
Convention (WP.396)
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the Composite Text sets out that a disease outbreak can only be cause
for a field investigation, and only if there is a concern that it is directly
related to activities prohibited by the Convention
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Design of field investigation areas
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13AHG: up to three different areas can be requested “with each such
area not to exceed […] square kilometres in size”; investigation areas can be
extended by DG authorization; new investigation areas can be established by
ExC authorization (WP.348)
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Access to facilities during field investigations
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12AHG: access to facilities for conducting field investigation
activities, if these can not be conducted outside; investigation team can
request access to facilities for facility investigation purposes - if
receiving State Party agrees, access shall be negotiated on a managed access
basis - if the receiving State Party does not agree, the investigation team
can request a facility investigation (WP.314)
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the Composite Text sets out that the team can conduct field
investigation activities in any place in the investigation area
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Access outside of field investigation areas
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13AHG: disease/intoxination-related examination and interviewing can
take place outside the field investigation area, if necessary (WP.348)
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the Composite Text sets out that the receiving State Party has to
enable the investigation team to conduct interviews and disease-related
examination of individuals who are not present in the investigation area, but
whose interviewing or examination is required to fulfil the mandate
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Sampling during investigations
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22AHG: rewording of sampling language in the annex on investigation
is suggested (WP.442)
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the language in the Composite Text closely follows the concepts set
out in WP.442
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Decisions of ExC after investigation has taken place
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22AHG: in case of abuse, the ExC can only decide that the requesting
State Party should bear financial implications, the US do not want the ExC to
decide to revoke the right of the requesting State Party to request another
investigations, or revoke its eligibility for the ExC (WP.441)
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limiting the ExC options for punishment in case of abusive requests
seems to contradict the US view that abusive requests need to be made as
difficult as possible
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