11 July 2001

Detailed comparison of positions expressed by the US

Topic	US statement of 25 July 2001	Testimonies given on 5 June or 10 July 2001	US position voiced in the AHG negotiations	Comment/ summary
General	“the current approach to a Protocol … is not … capable of achieving the mandate”	“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)	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)	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
Objectives of a Protocol	“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”	“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)		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
Constitutional and ratification issues	“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]”			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”
CPI and NSI	“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.”	“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)		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
Range of declaration triggers	“… 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”	“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)	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)	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”
Current biodefence trigger	“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”		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)	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
Production trigger		“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)		in contrast to the Rolling Text, the Composite Text subsumes the “vaccine produc-tion” trigger under the overall trigger “production”
Declaration formats		“the formats [are] confusing, and they require inclusion of confidential business information” G. Woollett, written testimony on 5 Jun 2001)
Usefulness/ purpose of random visits	“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”	“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)	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)	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
Duration and timing of random visits		“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)
Size of visiting team		“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)
Mandate of random visits			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)
Conduct of random visit			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)	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
Report of random visits			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)
Purpose of declaration clarification procedures/ visits		“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)		US has consistently supported strong declaration clarification procedures
Applicability of declaration clarification procedure			11AHG: to both declared and undeclared facilities (WP.294)
Initiation of declaration clarification procedures			11AHG: in case of declared facilities by TS, in case of undeclared facilities by States Parties or by TS (WP.294)
Initiation of clarification visit			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)
Decision-making on clarification visit requests			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)
Timing and duration of a clarification visit		“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)	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)	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
Size of visiting team		“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)	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)	the Composite Text foresees a maximum of 4 members
Mandate for clarification visits			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)
Rights and obligations of visited State Party during clarification visits			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)	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)
Report on clarification visits

US PUBLIC POSITIONS ON THE BTWC PROTOCOL

Summary